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CIHM/ICMH 

Microfiche 

Series. 


CIHM/ICMH 
Collection  de 
microfiches. 


Canadian  Instituta  for  Historical  IMicroraproductions 


institut  Canadian  da  microraproductions  historiqua* 


1980 


Technical  Notes  /  Notes  techniques 


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L'Institut  a  microf  ilm«  le  meilleur  exemplaire 
qu'ii  lui  a  4t4  possible  de  se  procurer.  Certains 
dAfauts  susceptibles  de  nuire  h  la  qualitA  de  la 
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de  la  distortion  le  long  de  la  marge 
int6rieure) 


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Pages  damaged/ 
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Pages  missing/ 
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Le  titre  de  couverture  manque 


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The  imagat  appearing  hara  ara  tha  baat  quality 
poaaibia  conaidaring  tha  condition  and  lagibiiity 
of  tha  original  copy  and  in  Icaaping  with  tha 
filming  contract  apacifications. 


Laa  imagaa  auivantaa  ont  Ati  raproduitaa  avac  la 
plua  grand  aoin,  compta  tanu  da  la  condition  at 
da  Ifi  nattatA  da  I'axamplaira  film*,  at  an 
conformit4  avac  laa  conditiona  du  contrat  da 
filmaga. 


Tha  laat  racordad  frama  on  aach  microficha  ahall 
contain  tha  aymbol  — »>(maaning  CONTINUED"), 
or  tha  aymbol  V  (moaning  "END"),  whichavar 
appliaa. 


Un  daa  aymboiaa  auivants  apparattra  aur  la  dar- 
nlAra  Imaga  da  chaqua  microficha,  aalon  la  caa: 
la  aymbola  — ►  algnlfia  "A  SUIVRE",  la  aymbola 
y  algnlfia  "FIN". 


Tha  original  copy  waa  borrowad  from,  and 
f ilmad  with,  tha  icind  cona«nt  of  tha  following 
inatitution: 

Library  of  tha  Public 

Archivaa  of  Canada 

IVIapa  or  plataa  too  iarga  to  ba  antlraly  includad 
in  ona  axpoaura  ara  filmad  baginning  In  tha 
uppar  laft  hand  cornar,  laft  to  right  and  top  to 
bottom,  as  many  framas  as  raquirad.  Tha 
following  diagrams  illustrata  tha  mathod: 


L'axamplaira  film*  fut  raproduit  grAca  A  la 
g^nArositA  da  ritabiiaaamant  prAtaur 
auivant : 

La  bibllothAqua  daa  Archivaa 

publlquaa  du  Canada 

Laa  cartas  ou  las  planchas  trop  grandaa  pour  Atra 
raproduitaa  an  un  saul  cllchA  aont  fllmAaa  A 
partir  da  I'angia  supArieura  gaucha,  da  gaucha  A 
drolta  at  da  haut  an  baa,  an  pranant  la  nombra 
d'imagaa  nAcaaaaira.  La  diagramma  auivant 
illustra  la  mAthoda  : 


1  2  3 


1 

2 

3 

4 

5 

6 

m 


X-XI-XII 


FEDERAL  GOVERNMENT 


IN 


CANADA 


JOHNS  HOPKINS  UNIVERSITY  STUDIES 

nr 

Historical  and  Political  Science 


HERBERT  B.  ADAMS,  Editor. 


HlBtory  is  past  Politics  and  PoUUcs  present  History  — /fVecman. 


SEVENTH  SERIES 


X-XI-XIl 


FEDERAL  GOVERNMENT 


m 


CANADA 


By  JOHN  G.  BOURINOT,  Hon.  LL.D.,  D.  C.  L. 

Chrk  <V  theUouse  of  Commons  qf  Canada;  Honorary  Secretary  of  the  Royal  Society  of  Canada;  Author 
V  rarltamentary  Practice  and  Procedure  in  Canada,  Manual  qf  (Ae  ConatUutional  HUtory 
of  Canada,  local  Oovemment  in  Canada  (in  John*  aopkin»  Univeriity 
Studies,  nth  Series,  t-W.) 


BALTIMOBE 

N.  MCBBAY,  PCBUCATION  AGENT,  JOHHS  HOFKINS  UNrVBBSITT 

October,  Noremb«rf  December,  1888 


/" 


Ck>PYBIOHT,  1889,  BY  N.  MUBRAY. 


JOHN  HUBPHY  A  CO.,  PBINTBBS. 
BAI/IIMOBB. 


TAB1.E  OF  CONTENTS. 


PAoa. 
Lecture  I.  Historical  Outline  op  Political  Development...        7 

II.  General  Features  op  the  Federal  System 29 

III.  The  Government  and  the  Parliament 77 

IV.  The  Provincial  Governments  and  Legislatures..    121 


/^ 


C!0BRIGENDA. 


Page  32,  line  21,  fm  third 
"  130,    "    17,    "  two  or  three 
"  147,    "    22,   "  $1500 


read  fourth. 
"    five. 
"    $10,000. 


'*•>         -"■">        <piouw  •'    $10  000. 

"Jt^'    u    oJ   "  legislative  department    "    judicial'department. 
151,         20,        another  by-law  "    the  question  again. 


FEDERAL  GOVERNMENT  IN  CANADA. 


LECTURE  I. 


HISTORICAL  OUTLINE  OF  POLITICAL 
DEVELOPMENT. 

In  the  course  of  this  anu  the  following  lectures/  I  propose 
to  direct  your  attention  to  the  Federal  constitution  of  the 
Dominion  of  Canada.  My  review  of  the  system  of  govern- 
ment which  we  now  possess  must  necessarily  be  limited  in  its 
scope.  I  can  but  give  you  an  outline  of  its  leading  features 
and  a  very  imperfect  insight  into  its  practical  operation.  I  do 
not  pretend  to  do  more  than  lay  before  you  a  mere  sketch — 
perhaps  not  more  than  a  tracing  of  the  architect's  work — and 
point  out  the  strength  and  harmony  of  the  proportions  of  the 
national  structure  which  Canadian  statesmen  are  striving  to 
perfect  oil  the  northern  half  of  the  continent.  At  the  same 
time  I  shall  endeavor  to  indicate  what  seem,  in  the  opinions 
of  competent  authoritias,  to  be  such  defects  and  weaknesses  as 
must  always,  sooner  or  later,  show  themselves  in  the  work  of 
human  hands. 

It  is  necessary  that  I  should  at  the  outset  briefly  trace  the 
various  steps  in  the  political  development  of  British  North 
America,  so  that  you  may  the  more  clearly  understand  the 


•  These  fonr  lectures  were  read  during  the  month  of  May,  1889,  before 
Trinity  University,  Toronto,  Canada,  and  are  now  printed  for  the  first  time 
with  some  notes  and  additions  to  the  text. 

7 


T7^ 


8 


Federal  OovemmerU  in  Canada. 


[464 


origin  and  nature  of  our  present  system  of  government.  Nor 
can  I  well  leave  out  of  the  consideration  some  references  to 
the  political  institutions  that  existed  in  Canada  previous  to 
1769-60.  Such  a  review  will  not  give  any  evidence  of  polit- 
ical progress,  but  it  would  be  very  incomplete  if  it  did  not 
lay  before  you  the  characteristics  of  a  system  of  government 
which  is  not  simply  interesting  from  an  antiquarian  or  his- 
torical point  of  view,  but  also  on  account  of  the  comparisons 
it  leads  us  to  make  between  the  absolutism  it  represented  and 
t'le  political  freedom  which  has  been  the  issue  of  the  fall  of 
Quebec  in  1759,  and  of  the  supremacy  of  England  in  Canada. 

But  there  is  another  importjint  consideration  which  renders 
it  absolutely  necessary  that  I  should  give  more  than  a  passing 
allusion  to  the  l^^rench  period  of  Canadian  history.  Though 
more  than  a  century  and  a  quarter  has  passed  since  those  days 
of  the  French  regime,  many  of  the  institutions  which  were 
inherited  from  old  France  have  become  permanently  estab- 
lished in  the  country,  and  we  see  constantly  in  the  various 
political  systems  formed  in  Canada  from  time  to  time  the 
impress  of  those  institutions  and  the  influence  of  the  people  of 
French  Canada. 

As  the  most  convenient  method  of  dealing  with  this  part  of 
my  subject,  I  shall  leave  the  consideration  of  the  political 
development  of  Nova  Scotia  and  the  other  small  provinces 
until  the  last  lecture,  when  I  come  to  review  the  present  con- 
stitution of  their  governments  and  legislatures.  I  shall  con- 
fine myself  for  the  present  to  the  political  history  of  the  large 
country  generally  known  as  Canada  until  18()7,  and  now 
divided  into  the  provinces  of  Ontario  and  Quebec.  This 
history  may  be  properly  divided  into  several  Periods,  varying 
in  the  number  of  years  from  the  time  Champlain  laid  the 
foundation  of  the  French  colony  on  the  banks  of  the  St.  Law- 
rence, down  to  the  establishment  of  the  system  of  federation. 

First  of  all  we  have  the  period  when  France  claimed  do- 
minion over  the  cxteusivo  ill-defined  territories  watered  by  the 
St.  Lawrence  and  the  j.    at  Lakes  and  including  the  valleys 


465] 


Federal  Ooveimment  in  Canada. 


9 


of  the  Ohio  and  the  Mississippi  Rivers.  During  this  period 
which  lasted  from  1608  to  1769-60, — for  it  is  not  necessary 
to  refer  to  the  abortive  exjiedition  of  the  Marquis  de  la  Roche 
or  to  the  voyages  of  Jacques  Cartier  which  did  not  lead  to 
immediate  colonization, — Canada  was  under  the  control  for 
a  number  of  years  of  proprietary  governments  chartered  by 
the  king  to  carry  on  trade  in  the  country  whose  furs  were 
already  highly  vahied  in  the  markets  of  Europe.  In  those 
days  of  chartered  corporations  the  governor  was  radically 
supreme  and  exercised  executive,  legislative  and  judicial  powers 
with  the  assistance  of  a  council  which  he  consulted  according 
to  his  pleasure.  By  1663,  however,  Louis  XIV.  decided  under 
the  advice  of  the  eminent  statesman  Colbert  to  take  the  gov- 
ernment of  Canada  into  his  own  hands,  but  the  measures  he 
proposed  wen;  for  a  while  kept  in  abeyance  on  account  of  a 
charter  for  commercial  purposes  being  granted  to  a  new  com- 
pany under  the  influence  of  courtiers  anxious  to  use  the  colony 
for  their  own  selfish  purposes.  But  Colbert  was  ambitious  to 
extend  the  commerce  of  France  and  establish  colonies  wherever 
she  had  a  foothold,  and  in  this  respect  he  was  wise  above 
statesmen  of  his  day.  Accordingly  we  find  that  on  the  failure 
of  the  new  company  to  realize  its  expectations  no  fresh  effort 
was  made  in  the  same  direction,  but  the  plans  of  1663  were 
carried  out  in  1674  and  the  king  and  his  minister  took  all  the 
measures  necessary  to  establish  beyond  legal  doubt  a  regular 
system  of  government  in  accordance  with  the  autocratic  spirit 
which  characterized  regal  power  in  those  days.  It  has  been 
well  observed  by  the  historian  Parkraan  that  the  governor  of 
Canada  as  well  as  the  intendant,  the  next  most  important  if 
not  indeed  in  many  ways  the  most  important  functionary  of 
state,  were  to  all  intents  and  purposes  in  point  of  authority, 
the  same  officials  who  presided  over  the  affairs  of  a  province 
of  France.  In  Canada  as  in  France  governors-general  had 
only  such  powers  as  were  expressly  given  them  by  the  king 
who,  jealous  of  all  authority  in  others,  kept  them  rigidly  in 
check.  In  those  days  the  king  was  supreme ;  "  I  am  the  state  " 
2 


10 


Federal  Government  in  Canada. 


[466 


said  Louis  Quatorze  in  the  arrogance  of  his  power.  The 
feudal  system  of  France  had' been  long  since  deprived  of  its 
dangers  to  the  monarch  and  the  nobles  of  the  once  proud 
feudal  families,  who  in  old  times  had  even  defied  their  feudal 
chief,  were  now  kept  within  the  courtly  precincts  to  pay  him 
homage  and  obey  his  commands.  The  three  estates,  the  nobles, 
clergy  and  tiera  Hatj  or  the  "  nation,"  still  existed  in  name, 
but  while  the  first  was  stripped  of  real  power  and  the  second 
exercised  its  usual  influence  on  the  conscience  of  the  de- 
vout the  people  groaned  under  the  exactions  of  the  king  and 
his  courtiers.  The  states-general  never  assembled  to  give  voice 
to  the  complaints  of  the  nation  and  provide  redress.  We  find 
there  were  Parliaments  that  assembled  at  stated  periods  at  Paris, 
Rouen  and  other  important  places  but  in  no  respect  did  they 
resemble  that  great  council  of  the  English  people  which  from 
the  earlier  days  of  English  history  has  been  so  often  a  check 
on  kingly  assumptions.  The  Parliaments  of  France  were 
purely  of  a  judicial  character,  and  though  at  times  they  served 
as  a  curb  on  the  absolutism  of  the  king,  as  a  rule  they  were 
under  his  control,  and  forced  under  all  circumstances  to  reg- 
ister his  decrees,  however  objectionable  they  might  be.  In 
view  of  such  facts  it  is  easy  to  understand  that  there  could  be 
no  such  things  as  free  government  or  representative  institu- 
tions in  Canada,  like  those  enjoyed  from  the  very  commence- 
ment of  their  history  by  the  old  English  colonies  which  were 
founded  almost  contemporaneously  with  the  settlement  of 
Acadia  and  Canada  by  De  Poutrincourt  and  Champlain. 

The  governor  had  command  of  the  militia  and  troops,  and 
was  nominally  superior  in  authority  to  the  intendant,  but  in 
the  course  of  time  the  latter  became  virtually  the  most  influ- 
ential  officer  in  the  colony,  and  even  presided  at  the  council 
board.  This  official,  who  had  the  right  to  report  directly  to 
the  king  on  colonial  affiiirs,  had  large  civil,  commercial  and 
maritime  jurisdiction,  and  could  issue  ordinances  on  his  own 
responsibility  which  had  full  legal  effect  in  the  country.  Asso- 
ciated with  the  governor,  and  intendant  was  a  council,  com- 


^ 


467] 


Federal  Government  in  Canada, 


11 


prising  in  the  first  instance  five,  and,  eventually,  twelve 
persons  chosen  from  the  leading  people  of  the  country.  The 
change  of  name  from  the  "  Supreme  Council "  to  the  "  Supe- 
rior Council "  is  of  itself  some  evidence  of  the  determination 
of  the  king  to  restrain  the  pretensions  of  all  official  bodies 
throughout  the  kingdom  and  its  dependencies.  This  body 
exercised  legislative  and  judicial  powers,  and  was  a  court  of 
appeal  from  the  judicial  functionaries  at  Quebec,  Montreal 
and  Three  Rivers,  the  principal  towns  of  the  three  districts 
into  which  the  country  was  divided  for  the  administration  of 
justice  in  accordance  with  the  Ckmtume  de  Paris.  The  Bishop 
was  a  member  of  the  council,  and  the  history  of  the  colony  is 
full  of  the  quarrels  that  arose  between  him  and  the  governor 
on  points  of  official  etiquette,  or  with  respect  to  more  import- 
ant matters  affecting  the  government  of  the  country.  The 
Roman  Catholic  Church,  from  the  very  first  settlement  of 
Canada,  was  fostered  by  express  provisions  in  the  charters  of 
the  incorporated  commercial  companies.  The  causes  that 
assisted  in  the  colonization  of  the  French  colony  were  trade 
and  religion,  and  the  priestly  missionary  was  as  frequent  a 
visitor  in  the  camp  of  the  Indian  tribes  as  the  Cbureur  de  bois, 
who  wandered  over  the  Western  wilderness  in  the  days  of  the 
French  r6gime.  When  tlie  king  assumed  the  government,  the 
bishop  and  his  clergy  continued  to  increase  their  power  and 
wealth,  and  by  the  time  of  the  conquest  the  largest  landed 
proprietors,  and  in  many  respects  the  wealthiest,  were  the 
church  and  its  communities.  The  seigniory  soon  gave  way  to 
the  parish  of  the  church,  as  a  district  for  local  as  well  as 
for  ecclesiastical  purposes.  Tithes  were  imposed  and  regulated 
by  the  government,  and  as  the  country  became  more  populous 
the  church  grew  in  strength  and  riches.  It  held  always  under 
its  control  the  education  of  the  people,  and  was  then,  as  now, 
the  dominant  power  in  the  country. 

The  king  and  the  council  of  state  in  France  kept  a  strict 
supervision  over  the  government  of  the  colony.  An  appeal 
lay  to  the  king  in  all  civil  and  criminal  matters,  b'lt  the  dis- 


"m 


1 


12 


Federal  Government  in  Canada. 


[468 


tance  between  Paris  and  Quebec,  in  those  days  of  slow  com- 
munication, tended  to  keep  up  many  abuses  under  which  the 
people  suffered,  and  it  is  easy  to  explain  how  it  was  that  an 
unscrupulous  intendant  like  Bigot  was  able  to  cheat  the  Cana- 
dians for  so  many  years  with  impunity  and  amass  large  wealth 
by  the  most  disgraceful  peculation  and  jobbery. 

We  look  in  vain  for  evidence  of  popular  freedom  or  material 
prosperity  during  these  times.  The  government  was  autocratic 
and  illiberal,  and  pn.otically  for  many  years  in  the  hands  of 
the  intendant.  Public  meetings  were  steadily  repressed  and 
even  the  few  that  were  held  in  those  early  days  on  occasions  of 
public  emergency  could  be  called  only  at  the  instance  of  the 
authorities.  No  system  of  municipal  government  was  estab- 
lished, and  the  efforts  to  elect  aldermen  for  civic  purposes  in 
Quebec  were  almost  immediately  rendered  ineffectual  by  the 
open  or  insidious  hostility  of  the  governing  powers.  Some 
semblance  of  popular  representation  was  given  for  a  while  by 
the  election  of  "syndics,"  a  class  of  officials  peculiar  to  French 
local  administration,  though  we  can  trace  their  origin  to  the 
Greeks.  The  French  Canadian  colonists  had  in  all  probability 
brought  with  them  among  their  customary  rights  that  of  choos- 
ing an  agent  for  the  special  purpose  of  defending  the  interests 
of  a  community  whenever  necessary  before  the  authorities, 
but  in  accordance  with  the  principles  that  lay  at  the  basis  of 
the  Canadian  government,  the  people  soon  found  themselves 
incapable  of  exercising  what  might  have  been  a  useful  muni- 
cipal office,  and  might  have  led  to  the  extension  of  popular 
privileges.  It  is  not  strange,  then,  that  the  hahitarda  of  the 
seigniories,  as  well  as  the  residents  in  the  towns,  lived  for  the 
most  part  a  sluggish  existence  without  any  knowledge  of,  or 
interest  in  the  affairs  of  the  colony,  which  were  managed  for 
them  without  their  consent  or  control,  even  in  cases  of  the 
most  insignificant  matters.  Even  trade  was  in  fetters.  Cana- 
dians could  only  deal  with  France,  in  conformity  with  the 
restrictive  policy  of  those  times  when  colonies  were  considered 
simply  feeders  for  the  commerce  of  the  parent  state. 


469] 


Federal  Government  in  Canada. 


13 


It  may  be  urged  with  truth  that  the  French  Canadian  had 
no  knowledge  of  those  free  institutions  which  Englishnuru 
brought  to  this  continent  as  their  natural  birthright.  The 
people  of  France  w^re  crushed  beneath  the  heels  of  the  king 
and  nobles,  and  the  Norman  or  Breton  was  hardly  a  freeman 
like  an  Englishman  of  Devon  or  Kent.  But  transplanted  to 
the  free  atmosphere  of  this  continent,  and  given  some  oppor- 
tunities for  asserting  his  manhood,  the  bold  courageous  native 
of  Brittany  or  Normandy  might  have  sooner  or  later  awaked 
from  his  political  lethargy,  and  the  conquest  might  have 
found  him  possessor  of  some  political  rights  and  in  many 
respects  an  energetic  member  of  the  community.  This  was, 
however,  impossible  in  a  country  where  the  directions  of  the 
king  and  his  pliant  ministers  were  always  to  the  effect  that 
liberty  of  speech  should  be  rigidly  repressed.  Even  the  Mar- 
quis of  Frontenac,  when  governor,  was  told  in  very  emphatic 
terms  that  he  made  a  grievous  mistake  when  he  presumed 
to  advise  the  assembling  of  the  Canadians  on  the  plan  of  the 
&at8  gin^aux  of  France ;  a  piece  of  presumption,  indeed,  when 
the  representative  assemblies  were  never  called  together  even 
in  the  parent  state. 

We  must  now  come  to  the  Second  Period  in  our  political 
history,  which  dates  from  that  hour  of  humiliation  for  France 
and  her  Canadian  offspring,  the  capitulation  of  Quebec  and  of 
Montreal  in  1759-1760.  This  was  the  commencement  of 
that  new  era  during  which  the  French  Canadians  were  grad- 
ually to  win  for  themselves  the  fullest  political  freedom  under 
the  auspices  of  England.  The  second  period  may  be  con- 
sidered for  the  purposes  of  historical  convenience,  to  be  the 
transition  stage  from  the  conquest  until  the  granting  of  repre- 
sentative institutions  in  1791.  I  call  it  a  transition  stage 
because  it  illustrates  the  development  from  the  state  of  com- 
plete political  ignorance  that  existed  at  the  time  of  the  conquest 
to  the  state  of  larger  political  freedom  that  the  constitutional 
act  of  1791  gave  to  the  people  of  Canada.  During  this 
transition  period  it  is  interesting  to  notice  the  signs  t'"'^t  the 


14 


Federal  Government  in  Canada. 


[470 


French  Canadian  leaders  gave  from  time  to  time  of  their 
comprehension  of  self  government,  even  within  a  quarter  of 
a  century  from  the  day  they  emerged  from  the  political  dark- 
ness of  their  own  country  under  the  French  regime.  Several 
political  facts  require  brief  mention  in  this  connection.  From 
1760  to  1763  when  Canada  was  finally  ceded  to  Great  Britain 
by  the  Treaty  of  Paris  there  was  a  military  government  as  a 
necessary  consequence  of  the  unsettled  condition  of  things, 
but  it  does  not  demand  any  special  consideration  in  this  review. 
Then  King  George  III  issued  his  famous  proclamation  of 
1763,^  and  by  virtue  of  the  royal  prerogative  established  a 
system  of  government  for  Canada.  The  people  were  to  have 
the  right  to  elect  representatives  to  an  assembly,  but  the  time 
was  not  yet  ripe  for  so  large  a  measure  of  political  liberty,  if 
indeed  it  had  been  possible  for  them  to  do  so  under  the  in- 
structions to  the  governor-general,  which  required  all  persons 
holding  office  or  elected  to  an  assembly  to  take  oaths  against 
transubstantiation  and  the  supremacy  of  the  Pope.  This 
proclamation  which  was  very  clumsily  framed  in  the  opinioii 
of  lawyers  created  a  great  deal  of  dissatisfaction,  not  only  for 
the  reason  just  given  but  on  account  of  its  loose  reference  to 
the  system  of  laws  that  should  prevail  in  the  conquered 
country.  As  a  matter  of  fact  the  ordinances  issued  by  the 
governor  and  executive  council  that  now  governed  Canada, 
practically  went  to  establish  both  the  common  and  the  criminal 
law  of  England  to  the  decided  inconvenience  and  dissatisfac- 
tion of  the  French  Canadians  accustomed  to  the  civil  law  of 
France.  But  events  were  shaping  themselves  in  favor  of  the 
French  Canadians  or  "  new  subjects  "  as  they  were  called  in 
those  days.  The  difficulty  that  had  arisen  between  England 
and  the  old  thirteen  colonies  led  her  statesmen  to  pay  more 
attention  to  the  state  of  Canada  and  to  study  the  best  methods 
of  strengthening  their  government  in  the  French  colony,  where 


^  Issued  7th  October,  1763.    See  text  at  the  end  of  third  volume  of  Cart- 
wright's  Cases  on  the  British  North  America  Act. 


471] 


Federal  Government  in  Canada. 


15 


the  English  element  was  still  relatively  insignificant  though 
holding  practically  the  reins  of  power  by  means  of  the  execu- 
tive council  and  the  public  offices.  In  1774  the  parlia- 
ment of  Great  Britian  was  for  the  first  time  called  upon 
to  intervene  in  the  affairs  of  Canada  and  passed  the  act 
giving  the  first  constitution  to  Canada,  generally  known 
in  our  history  as  the  Quebec  act.^  During  the  same  session 
were  passed  a  series  of  acts  with  the  object  of  bringing  the 
colonists  of  New  England  into  a  more  humble  and  loyal  state 
of  mind ;  for  the  cargoes  of  tea,  inopportunely  despatched  to 
different  colonial  ports,  had  been  already  destroyed,  and  the 
discontent  that  prevailed  generally  in  the  colonies,  especially 
in  Massachusetts,  had  reached  a  crisis.  The  Quebec  act  was 
in  the  direction  of  conciliating  the  French  Canadians,  who 
naturally  received  it  with  much  satisfaction.  The  English, 
on  the  other  hand,  regarded  it  with  great  disfavor,  and  the 
same  may  be  said  of  the  people  of  the  old  thirteen  colonies, 
who  subsequently,  through  their  Congress,  stated  their  objec- 
tions in  an  appeal  to  the  people  of  Great  Britain,  and  declared 
it  to  be  '^  unjust,  unconstitutional,  and  most  dangerous  and 
destructive  of  American  rights."  The  act  established  a  legis- 
lative council  nominated  by  the  crown,  and  the  project  of  an 
assembly  was  indefinitely  postponed.  The  French  Canadians 
were  not  yet  prepared  for  representative  institutions  of  whose 
working  they  had  no  practical  knowledge,  and  were  quite 
content  for  the  time  being  with  a  system  which  brought  some 
of  their  leading  men  into  the  new  legislative  body.  All  their 
experience  and  traditions  were  in  favor  of  a  governing  body 
nominated  by  the  king,  and  it  required  time  to  show  them  the 
advantage  of  the  English  system  of  popular  assemblies.  But 
what  made  the  act  so  popular  in  Lower  Canada  was  the  fact 
that  it  removed  the  disabilities  under  which  the  French  Cana- 
dians, as  Roman  Catholics,  were  heretofore  placed,  guaranteed 
them  full  freedom  of  worship,  and  placed  the  church,  with  the 


1  Imp,  Act,  14th  Geo.  Ill,  cap.  83. 


16 


Federal  Government  in  Canada. 


[472 


exception  of  the  religious  orders,  the  Jesuits  and  Sulpitians/ 
in  complete  possession  of  ineii  valuable  property.  The  old 
French  law  wr  estored  in  all  matters  of  controversy  relating 
to  property  anu  civil  rights.  The  criminal  law  of  England, 
which  was,  in  the  opinion  of  the  French  Canadians,  after  an 
experience  of  some  years,  preferable  to  their  own  system  on 
account  of  its  greater  mildness  and  humanity,  was  to  prevail 
throughout  the  country.  The  hostile  sentiment  that  existed 
in  Canada,  and  the  old  thirteen  colonies  arose  in  a  great 
measure  from  the  fact  that  the  civil  law  of  France  was 
applied  to  the  English  residents  not  only  in  the  French  section, 
but  to  the  large  area  of  country  extending  to  the  Mississippi 
on  the  west,  and  the  Ohio  on  the  south,  so  as  to  include  the  terri- 
tory now  embraced  by  the  five  States  northwest  of  the  Ohio. 
While  this  act  continued  in  force  various  causes  were  at 
work  in  the  direction  of  the  extension  of  popular  government. 
The  most  important  historical  fact  of  the  period  was  the  com- 
ing into  British  North  America  of  some  forty  thousand  persons, 
known  as  United  Empire  Loyalists,  who  decided  not  to  remain 
in  the  old  thirteen  colonies  when  these  foreswore  their  allegi- 
ance to  the  king  of  England.  Few  facts  of  modern  times 
have  had  a  greater  influence  on  the  destinies  of  a  country  than 
this  immigration  of  sturdy,  resolute  and  intelligent  men,  united 
by  high  principles  and  the  most  unselfish  motives.  They  laid 
the  foundations  of  the  provinces  now  known  as  New  Bruns- 
wick and  Ontario,  and  settled  a  considerable  portion  of  Nova 
Scotia.  From  the  day  of  their  settlement  on  the  banks  of  the 
St.  John,  Niagara  and  St.  Lawrence  rivers,  and  in  the  vicinity 
of  Lakes  Ontario  and  Erie,  they  have  exercised  by  themselves 
and  their  descendants  a  powerful  influence  on  the  institutions 


''The  Sulpitians,  ..^ho  are  a  very  wealthy  corporate  body,  were  left  in 
possession  of  their  property,  but  it  was  not  nntil  1839  that  they  received 
legal  recognition.  The  Crown  took  formal  possession  of  the  property  of  the 
Jesuits  in  1800  on  the  death  of  the  last  representative  of  the  order  in 
Canada.  See  Lecture  II,  and  Lareau,  Histoire  du  Droit  Canadien,  II, 
pp.  195-200. 


473] 


Federal  Government  in  Canada. 


17 


of  Canada,  not  unlike  that  exercised  by  the  descendants  of  the 
New  England  pioneers  throughout  the  American  Union  ;  and 
it  is  to  them  we  owe  much  of  that  spirit  and  devotion  to 
England  which  has  always  distinguished  the  Canadian  people 
and  aided  to  keep  them,  even  in  critical  periods  of  their  history, 
within  the  empire. 

In  view  of  the  rapidly  increasing  English  population  of 
Canada  and  of  tlie  difficulties  that  were  constantly  arising 
between  the  two  races, — difficulties  increased  by  the  fact  that 
the  two  systems  of  law  wer-^  constantly  clashing  and  the 
whole  system  of  justice  was  consequently  very  unsatisfactorily 
administered, — the  British  government  considered  it  the 
wisest  policy  to  interfere  again  and  form  two  separate  pro- 
vinces, in  which  the  two  races  could  work  out  their  own  future, 
as  far  as  practicable,  apart  from  each  other.  This  was  a  very 
important  change  in  its  far-reaching  consequences.  It  was 
not  merely  another  remarkable  step  in  the  political  develop- 
ment of  Canada,  but  it  was  to  have  the  effect  not  only  of 
educating  the  French  Canadians  more  thoroughly  in  the 
advantages  of  self-government  but  of  continuing  the  work 
which  the  Quebec  Act  practically  commenced,  and  strength- 
ening them  as  a  distinct  nationality  desirous  of  perpetuating 
their  religion  and  institutions. 

The  passage  of  the  Constitutional  Act  of  1791^  is  the 
beginning  of  the  Third  Period  in  the  political  history  of 
Canada,  which  lasted  for  half  a  century  until  it  was  found 
necessary  to  make  another  important  change  in  the  constitu- 
tion of  the  provinces.  This  Act  extended  the  political  liber- 
ties of  the  people  in  the  two  provinces  of  Upper  Canada  and 
Lower  Canada — now  Ontario  and  Quebec — organized  under 
the  Act,  since  it  gave  them  a  complete  legislature,  composed 
of  a  governor,  a  legislative  council  nominated  by  the  crown,  and 
an  assembly  elected  by  the  people  on  a  limited  franchise,  prin- 
cipally the  old  forty  shilling  freehold  system  so  long  in  vogue 


^Imp.  Act,  31  Geo.  II,  Cap.  31. 


18 


Federal  Government  in  Canada. 


[474 


in  English  speaking  colonies.  The  object  was,  as  stated  at 
the  time,  to  separate  the  two  racey  as  much  as  })os8ible  and  to 
give  both  a  constitution  resembling  that  of  England  as  far  as 
the  circumstances  of  the  country  would  permit. 

The  history  of  the  two  provinces,  especially  of  French 
Canad  '  undei-  the  operation  of  the  Oonstitutional  Act  of  1791, 
is  full  L ;'  instruction  for  the  statesman  and  political  student. 
It  illustrates  the  fact  which  all  history  teaches,  that  the  political 
development  of  a  people  must  be  always  forward  the  moment 
their  liberties  are  extended,  and  that  the  refusal  of  franchises 
and  privileges  necessary  to  the  harmonious  operation  of  a 
government  is  sure  sooner  or  later  to  breed  public  discontent. 
I  do  not  purpose  to  dwell  on  well-known  historical  facts, 
but  there  are  a  few  considerations  bearing  on  this  review  of 
political  development  which  I  shall  briefly  mention.  In  the 
first  place  the  constitution  of  1791,  though  giving  many  con- 
cessions and  privileges  to  the  provinces,  had  an  inherent  weak- 
ness, since  it  professed  to  be  an  imitation  of  the  British 
system,  but  failed  in  that  very  essential  principle  which  tlie 
experience  of  England  has  proved  is  absolutely  necessary  to 
harmonize  the  several  branches  of  government;  that  is  the 
responsibility  of  the  executive  to  parliament,  or  more  strictly 
speaking  to  the  assembly  elected  by  the  people.  The  English 
representatives  in  the  province  of  Upper  Canada  soon  recog- 
nized the  value  of  this  all  important  principle  of  parliamentary 
government  according  as  they  had  experience  of  the  practical 
operation  of  the  system  actually  in  vogue ;  but  it  is  an  admitted 
fact  that  the  French  Canadian  leaders  in  the  assembly  never 
appreciated,  if  indeed  they  ever  understood,  the  constitutional 
system  of  England  in  its  full  significance.  Their  grievances, 
as  fully  enumerated  in  the  famous  resolutions  of  1834,  were 
numerous,  but  their  principal  remedy  was  always  an  elective 
legislative  council,  for  reasons  quite  intelligible  to  the  student 
of  those  times.  The  conflict  that  existed  during  the  last 
thirty  years  of  this  period  was  really  a  conflict  between  the 
two  races  in  Lower  Canada,  where  the  French  and  elective 


m 


475] 


Federal  Oovei-nmenJt  in  Canada. 


19 


element  predominated  in  the  Assembly,  and  the  English 
and  official  or  ruling  element  in  the  logislative  council.  The 
executive  government  and  legislative  council,  both  nominated 
by  the  crown,  were  virtually  the  same  body  in  those  days. 
The  ruling  spirits  in  the  one  were  the  ruling  spirits  in  the 
other.  The  English  speaking  people  were  those  rulers,  wlio 
obstinately  contested  all  the  questions  raised  from  time  to  time 
by  the  popular  or  French  par*/  in  the  assembly.  In  this 
contest  of  race,  religion  and  politics  the  p&ssions  of  men 
became  bitterly  inflamed  and  an  impartial  historian  must  dep- 
recate the  mistakes  and  faults  that  were  committed  on  both 
sides.  But  looking  at  the  record  from  a  purely  constitutional 
point,  it  must  be  admitted  that  there  was  great  force  in  the 
arguments  presented  by  the  assembly  against  many  anomalies 
and  abuses  that  existed  under  the  system  of  government. 
They  were  right  in  contending  for  having  the  initiation  and 
control  of  the  public  expenditures  in  accordance  with  the  prin- 
ciples of  parliamentary  government.  The  granting  of  supply 
is  essentially  the  privilege  of  a  people's  house,  though  no 
measure  can  become  law  without  the  consent  of  the  upper 
house,  which  may  reject,  but  cannot  amend  a  revenue  or 
money  bill.  Another  grievance  was  the  sitting  of  judges  in 
both  houses.  While  the  British  government  soon  yielded 
to  the  remonstrances  of  the  assembly,  and  instructed  the 
governor  to  consent  to  the  passage  of  an  act  to  prevent  the 
continuance  of  this  public  wrong — for  it  cannot  be  considered 
otherwise — of  judges  having  a  seat  in  the  assembly,  they  were 
permitted  to  remain  both  in  the  executive  and  legislative 
councils  for  neaily  the  duration  of  the  constitutional  act.  It 
was  not  until  the  assembly  endeavored  to  impeach  the  judges 
year  after  year,  and  deluged  the  imperial  parliament  with 
addresses  on  the  subject,  that  this  grievous  defect  disappeared 
from  the  political  system. 

In  Upper  Canada  the  political  difficulties  never  assumed 
so  formidable  an  aspect  as  in  the  French  Canadian  section. 
No  difference  of  race  could  arise  in  the  Western  province,  and 


■^^ 


20 


Federal  Oovemment  in  Canada. 


[476 


the  question  of  supplies  gradually  arranged  itself  more  satis- 
factorily than  in  Lower  Canada,  but  in  course  of  time  there  arose 
a  contest  between  officialism  and  liberalism.  An  official  class 
held  within  its  control  practically  the  government  of  the  pro- 
vince. This  class  became  known  in  the  parlance  of  those 
days  as  the  "  family  compact,"  not  quite  an  accurate  designa- 
tion, since  the  ruling  class  had  hardly  any  family  connection, 
but  there  was  just  enough  ground  for  the  term  to  tickle  the 
taste  of  the  people  for  an  epigrammatic  phrase.  The  clergy 
reserves  question  grew  out  of  the  grant  to  the  Protestant 
Church  in  Canada  of  large  tracts  of  land  by  the  constitutional 
act,  and  was  long  a  burning  dominant  question  in  the  contest 
of  parties.  The  reformers,  as  the  popular  party  called  them- 
selves, found  in  this  question  abundant  material  for  exciting 
the  jealousies  of  all  the  Protestant  sects  who  wished  to  see  the 
Church  of  England  and  Church  of  Scotland  deprived  of  the 
advantages  which  they  alone  derived  from  this  valuable  source 
of  revenue. 

The  history  of  this  period,  however  full  of  political  mis- 
takes, is  interesting  since  it  shows  how  the  people,  including 
the  French  Canadians,  were  learning  the  principles  on  which 
parliamentary  government  must  rest.  It  was  history  repeat- 
ing itself,  the  contest  of  a  popular  assembly  against  preroga- 
tive, represented  in  this  case  by  the  governor  and  executive 
which  owed  no  responsibility  to  the  people's  house.  Those 
times  of  political  conflict  have  happily  passed  and  the  domi- 
nant body  now  is  the  people's  house,  where  the  council  only 
holds  power  by  the  will  of  the  majority.  If  there  is  cause  for 
complaint,  or  danger  in  the  present  system,  it  is  in  the  too 
great  power  assumed  by  the  executive  or  ministry  and  the 
tendency  to  yield  too  much  to  its  assumptions  on  the  part  of 
the  political  majority. 

I  have  endeavored,  as  briefly  as  possible,  to  show  the 
principal  causes  of  irritation  that  existed  in  Canada  during  the 
third  period  of  our  history.  All  these  causes  were  intensified 
by  the  demagoguism  that  is  sure  to  prevail  more  or  less  in 


477] 


Federal  Government  in  Canada, 


21 


times  of  popular  agitation,  but  the  great  {^eril  all  the  while  in 
Lower  Canada  arose  from  the  hostility  of  the  two  races  in 
the  political  arena  as  well  as  in  all  their  social  and  public 
relations.  The  British  government  labored  to  meet  the 
wishes  of  the  discontented  people  in  a  fair  and  conciliatory 
spirit  but  they  were  too  often  ill  advised  or  in  a  quandary  from 
the  conflict  of  opinion.  No  doubt  the  governors  on  whom 
they  naturally  depended  for  advice  were  at  times  too  much 
influenced  by  their  advisers,  who  were  always  fighting  with 
the  people's  representatives  and  at  last  in  the  very  nature  of 
things  made  advocates  of  the  unpopular  party.  Too  gener- 
ally they  were  military  men,  choleric,  impatient  of  control, 
and  better  acquainted  with  the  rules  of  the  camp  than  the 
rules  of  constitutional  government  and  sadly  wanting  in  the 
tact  and  wisdom  that  should  guide  a  ruler  of  a  colony. 
Exception  must  be  made  of  Lord  Dorchester  who,  like 
Wellington  and  even  Marlborough,  was  a  statesman  who 
would  have  been  found  invaluable  had  fate  given  him  to 
Canada  at  a  later  period  of  her  history  when  the  political 
discontent  was  at  last  fanned  into  an  ill-advised  rebellion  in 
the  two  provinces,  a  rebellion  which  was  promptly  suppressed 
by  the  prompt  measures  immediately  taken  by  the  authorities. 
In  Lower  Canada  the  constitution  was  suspended  and  the 
government  of  the  country  from  1838-1841  was  administered 
by  the  governor  and  a  special  council.  The  most  important 
fact  of  this  time  was  the  mission  of  Lord  Durham,  a  distin- 
guished English  statesman,  to  inquire  into  the  state  of  the 
country  as  governor-general  and  high  commissioner.  Few 
state  papers  in  English  history  have  had  greater  influence 
on  the  practical  development  of  the  colonies  than  the  elaborate 
report  which  was  the  result  of  his  review  of  the  situation. 
It  was  a  remarkably  fair  summary  of  the  causes  of  discontent 
and  suggested  remedies  which  recommend  themselves  to  us  in 
these  days  as  replete  with  political  wistiora.  The  final  issue 
of  the  inquiries  made  into  the  condition  of  the  country  was 
the  intervention  of  parliament  once  more  in  the  affairs  of 


22 


Federal  Oovemment  in  Canada. 


[478 


Canada  and  the  passage  of  another  Act  providing  for  a  very 
important  constitutional  change. 

The  proclamation  of  the  Act  of  1841  ^  was  the  inauguration 
of  the  Fourth  Peri^  of  our  political  development  which 
lasted  until  1867.  Ihe  discontent  that  existed  in  Canada  for 
so  many  years  had  the  effect,  not  of  diminishing  but  of  en- 
larging the  political  privileges  of  the  Canadian  people.  The 
Imperial  government  proved  by  this  measure  that  they  were 
desirous  of  meeting  the  wishes  of  the  people  for  a  larger  grant 
of  self-government.  The  French  Canadians,  however  looked 
upon  the  Act  with  much  disfavor  and  suspicion.  The  report 
of  Lord  Durham  and  the  union  itself  indicated  that  there  was 
a  feeling  in  England  that  the  separation  of  the  two  races  in 
1791  had  been  a  political  mistake,  since  it  prevented  anything 
like  a  national  amalgamation ;  and  it  was  now  proposed  to 
make  an  effort  in  the  opposite  direction  and  diminish  the 
importance  of  the  French  Canadian  section  with  its  distinct 
language  and  institutions.  The  fact  that  the  French  language 
was  no  longer  placed  on  the  same  footing  as  English,  in  offi- 
cial documents  and  parliamentary  proceedings,  together  with  the 
fact  that  Upper  Canada  had  the  same  representation  as  Lower 
Canada  in  the  assembly,  despite  the  larger  population  of  the 
latter  section,  was  considered  an  insult  and  an  injustice  to  the 
French  Canadians,  against  which  they  did  not  fail  to  remon- 
strate for  years. 

But  in  my  studies  and  personal  experience  of  the  times  in 
which  I  live,  I  have  been  often  struck  by  the  fact  that  the  logic 
of  events  is  much  more  forcible  than  the  logic  of  statesmen. 
So  far  from  the  act  of  1841,  which  united  the  Canadas, 
acting  unfavorably  to  the  French  Canadian  people  it  gave 
them  eventually  a  predominance  in  the  councils  of  the  country 
and  prepared  the  way  for  the  larger  constitution  of  1867  which 
has  handed  over  to  them  the  control  of  their  own  province,  and 
afforded  additional  guarantees  for  the  preservation  of  their  lan- 


*  Imp.  Act  3  and  4  Vic,  Cap.  35. 


479] 


Federal  Oovemment  in  Canada, 


23 


guage  and  institutions.  French  soon  became  again  the  official 
language  by  an  amendment  of  the  union  act,  and  the  clause 
providing  for  etjuality  of  representation  proved  a  security 
when  the  upper  province  increased  more  largely  in  population 
than  the  French  Canadian  section.  The  act  was  framed  on 
the  principle  of  giving  full  expansion  to  the  cap?icity  of  the 
Canadians  for  local  government,  and  was  accompanied  by 
instructions  to  the  governor-general,  Mr.  Poulett  Thomson, 
afterwar  T^ord  Sydenham,  which  laid  the  foundation  of 
responsi  o..  ^  vernment.  It  took  several  years  to  give  full  effect 
to  this  Ipadnig  principle  of  parliamentary  government,  chiefly 
on  account  of  the  obstinacy  of  Lord  Metcalfe  during  his  term 
of  office ;  but  the  legislature  and  the  executive  asserted  them- 
selves determinately,  and  not  long  after  the  arrival  in  1847  of 
Lord  Elgin,  one  of  the  ablest  governors-general  Canada  has 
ever  had,  the  people  enjoyed  in  its  completeness  that  system  of 
the  responsibility  of  the  cabinet  to  parliament  without  which 
our  constitution  would  be  unworkable.  More  than  that,  all 
the  privileges  for  which  the  people  had  been  contending  dur- 
ing a  quarter  of  a  century  and  more,  were  conceded  in  accord- 
ance with  the  liberal  policy  now  laid  down  in  England  for  the 
administration  of  colonial  affairs.  The  particular  measure 
which  the  French  Canadians  had  pressed  for  so  many  years  on 
the  British  government,  an  elective  legislative  council,  was 
conceded.  When  a  few  years  had  passed  the  Canadian  Leg- 
islature was  given  full  control  of  taxation,  supply  and 
expenditure  in  accordance  with  English  constitutional  princi- 
ples. The  clergy  reserves  difficulty  was  settled  and  the  lands 
sold  for  public  or  municipal  purposes,  the  interests  of  existing 
rectors  and  incumbents  being  guarded.  The  great  land  ques- 
tion of  Canada,  the  seigniorial  tenure  of  Lower  Canada,  was 
disposed  of  by  buying  off  the  claims  of  the  seigniors.  With 
the  abolition  of  a  system,  which  had  its  advantages  in  the  <^r\y 
French  times,  since  it  forced  both  seignior  and  habitant  to 
settle  and  clear  their  lands  within  a  certain  period,  a  relic  of 
feudal  days,  foreign  to  the  free  spirit  of  American  civilization, 


24 


Federal  Oovemment  in  Canada. 


[480 


disappeared  from  our  civil  system  and  the  pp'  '  of  lower 
Canada  were  freed  from  exactions  which  had  become  not  so 
much  onerous  as  vexatious,  and  were  placed  on  the  free  foot- 
ing of  settlers  in  all  the  English  communities  of  America. 
Municipal  institutions  of  a  liberal  nature  especially  In  the 
province  of  Ontario,  were  established,  and  the  people  of  the 
provinces  enabled  to  have  that  control  of  their  local  affairs  in 
the  counties,  townships,  cities  and  parishes  which  is  necessary 
to  carry  out  public  works  indispensable  to  the  comfort,  health 
and  convenience  of  the  community,  and  to  supplement  the 
efforts  made  by  the  legislature,  from  time  to  time,  to  provide 
for  tiie  general  education  of  the  country ;  efforts  especially  suc- 
cessful in  the  province  of  Upper  Canada  where  the  universi- 
ties, colleges  and  public  schools  are  so  many  admirable 
illustrations  of  energy  and  public  spirit.  The  civil  service, 
which  necessarily  plays  so  important  a  part  in  the  administra- 
tion of  government,  was  placed  on  a  permanent  basis  and  has 
ever  since  afforded  a  creditable  contrast  with  the  loose  system 
so  long  prevalent  in  the  United  States,  where  the  doctrine, 
"  To  the  victors  belong  the  spoils,"  ^ — which  vras  established  in 
the  time  of  President  Jackson,  though  the  phrase  originated 
with  a  New  York  politician,  W.  L.  Maicy — was  found  neces- 
sary and  very  convenient  to  satisfy  the  great  body  of  office- 
seekers  who  naturally  grew  up  iu  a  countrjr  where  elections 
are  so  frequent  and  professional  politicians  so  numerous.  In 
addition  to  those  progressive  measures,  we  may  mention  the 
acts  securing  the  independence  of  parliament,  the  codification 
of  the  French  civil  law,  the  consolidation  of  the  public  statutes, 
the  improvement  of  the  election  laws  so  as  to  ensure  greater 
purity  at  elections,  as  among  the  legislation  of  a  period  replete 
with  usefulness  and  admirably  illustrating  the  practical  char- 
acter of  Canadian  public  men. 

Tlie  union  of  1841  did  its  work  and  the  political  conditions 
of  Canada  again  demanded  another  radical  change  commen- 


'  Sumner's  Life  of  Andrew  Jackson,  in  American  Statesmen  series,  p.  162. 


481] 


Federal  Government  in  Canada. 


25 


,162. 


surate  with  the  material  and  political  development  of  the 
country,  and  capable  of  removing  the  difficulties  that  had 
arisen  in  the  operation  of  the  Act  of  1841.  The  claims  of 
Upper  Canada  to  larger  representation,  equal  to  its  increased 
population  since  1840,  owing  to  the  great  imrtiigration  which 
naturally  sought  a  rich  and  fertile  province,  were  steadily 
resisted  by  the  French  Canadians  as  an  unwarrantable  inter- 
ference with  the  security  guaranteed  to  them  under  the  Act. 
This  resistance  gave  rise  to  great  irritation  in  Upper  Canada 
where  a  powerful  party  made  representation  by  population 
their  platform,  and  government  at  last  became  practically 
impossible  on  account  of  the  close  political  divisions  for  years 
in  the  assembly.  The  time  had  come  for  the  accomplishment 
of  a  great  change  foreshadowed  by  Lord  Durham,  Chief 
Justice  Sewell,  Mr.  Howe,  Sir  Alexander  Gait,  and  other 
public  men  of  Canada :  the  union  of  the  provinces  of  British 
Norlh  America.  The  leaders  of  the  different  governments  in 
Canada  and  the  maritime  provinces  of  Nova  Scotia,  New 
Brunswick,  and  i  rince  Edward  Island,  to  whose  political 
history  I  shall  refer  in  a  later  lecture,  after  negotiations  into 
which  I  need  not  enter  here,  combined  with  tl^e  leaders  of  the 
opposition  with  the  object  of  carrying  out  this  great  measure. 
A  convention  of  thirty-three  representative  men  was  held  in 
the  autumn  of  1864  in  the  historic  city  of  Quebec,  and  after 
a  deliberation  of  several  weeks  the  result  wa3  the  unanimous 
adoption  of  a  set  of  seventy-two  resolutions  embodying  the 
terms  and  conditions  (m  which  the  provinces  through  their 
delegates  agreed  to  a  federal  union  in  many  respects  similar 
in  its  general  features  to  that  of  the  United  States  federation, 
and  in  accordance  with  the  principles  of  the  English  constitu- 
tion. These  resolutioiiS  had  to  be  laid  before  the  various 
legislatures  and  adopted  in  the  shape  of  addresses  to  the  queen 
whose  sanction  was  necessary  to  embody  the  wishes  of  the 
provinces  in  an  imperial  statute. 

It  is  an  important  fact  that  the  consent  of  the  legislature 
was  deemed  sufficient  by  the  governments  of  all  the  provinces 
3 


26 


Federal  Government  in  Canada. 


[•J82 


except  one,  though  the  question  had  never  been  an  issue  at  the 
polls  before  the  election  of  the  legislative  bodies  which  ass'inied 
the  complete  responsibility  of  this  radical  change  in  the  con- 
stitutional position  and  relations  of  the  countries  affected.  In 
New  Brunswick  the  legislature  was  dissolved  twice  on  the 
issue,  'And  the  opposition  in  the  Nova  Scotia  assembly  retarded 
the  accomplishment  of  the  measure,  but  finally  both  these 
provinces  came  into  accord  with  the  Canadian  parliament, 
wh^re  only  a  relatively  small  minority  urged  objections  to  the 
proposed  union.  In  the  early  part  of  1867  the  imperial  par- 
liament, without  a  division,  passed  the  statute  known  as  the 
"British  North  America  Act,  1867,"  which  united  in  the 
first  instance  ^he  province  of  Canada,  now  divided  into 
Ontario  and  Quebec,  with  Nova  Scotia  and  New  Brunswick 
and  made  provisions  for  the  coming  in  of  the  other  provinces 
of  Prince  Edward  Island,  Newfoundland,  British  Columbia, 
and  the  admission  of  Rupert's  Land  and  the  great  North- 
west. 

Between  1867  and  1873  the  provinces  just  named,  with  the 
exception  of  Newfoundland,  which  has  persistently  remained 
out  of  the  federation,  became  parts  of  the  Dominion  and  the 
vast  North-west  Territory  was  at  last  acquired  on  terms  emi- 
nently satisfactory  to  Canada  and  a  new  province  of  great 
promise  formed  out  of  that  immense  region,  with  a  complete 
system  of  parliamentary  government. 

I  have  endeavored  in  the  preceding  pages  to  review  within 
as  brief  a  space  as  possible  the  salient  features  in  the  political 
development  of  Canada,  and  it  is  my  intention  in  the  lec- 
tures that  follow  to  direct  attention  to  the  framework  and 
operation  of  the  constitutioQal  system.  I  shall  not  treat  the 
questions  that  arise  from  a  mere  technical  or  legal  view,  but 
from  the  standpoint  of  one  who  has  many  opportunities  of 
observing  its  practical  working.  I  shall  refer  to  the  various 
important  changes  that  have  occurred  in  the  legislation  of 
the  country  affecting  the  various  branches  of  government, 
and  try  to  point  out  what  appear,  according  to  the  expe- 


483] 


Federal  Government  in  Canada. 


27 


rience  the  country  has  gained  within  a  quarter  of  a  century, 
to  be  defects  in  the  system  requiring  amendment  sooner  or 
later  in  order  to  give  it  more  elasticity,  efficiency  and  per- 
manency. 

So  far  as  I  have  gone  my  readers  will  see  even  from  this 
very  imperfect  summary  of  the  political  history  of  Canada  for 
two  hundred  and  sixty  years  since  the  foundation  of  Quebec, 
and  one  hundred  and  four  years  since  the  treaty  of  Paris,  that 
there  has  been  a  steady  development  ever  since  England,  the 
birth-place  of  free  institutions,  took  the  place  of  France,  so 
long  the  home  of  an  absolute,  irresponsible  autocracy.  It  took 
a  century  to  bring  about  the  changes  that  placed  Canada  in 
the  semi-independent  position  she  now  occupies,  but  as  we 
review  the  past  we  can  see  there  was  ever  an  undercurrent 
steadily  moving  in  the  direction  of  political  freedom.  Poli- 
ticians might  wrangle  and  commit  the  most  grievous  mistakes ; 
governments  in  England  and  Canada  might  misunderstand 
public  sentiment  in  the  colon;  and  endeavor  to  stem  the 
stream  of  political  progress,  but  the  movement  was  ever 
onward  and  the  destiny  that  watches  over  peoples  as  well  as 
over  individuals  was  shaping  our  political  ends,  and,  happily, 
for  our  good. 

The  results  of  these  many  years  of  political  agitation 
through  which  Canada  has  passed  have  been  eminently  favor- 
able to  her  interests  as  a  political  community.  No  country  in 
the  world  enjoys  a  larger  measure  of  political  liberty  or  greater 
opportunities  for  happiness  and  prosperity  under  the  liberal 
system  of  government  which  has  been  won  by  the  sagacity  and 
patience  of  her  people. 

Somewhere  I  have  seen  it  said  that  the  tree  of  liberty,  like 
the  oak  or  the  maple,  cannot  spring  suddenly  into  existence 
and  attain  full  maturity  in  a  day,  but  grows  slowly  and  must 
bend  at  times  beneath  the  storms  of  faction.  But  once  it  has 
taken  deep  root  in  a  congenial  soil,  passion  beats  in  vain 
against  its  trunk  and  the  people  find  safety  and  shelter  beneath 
its  branches.    The  tree  of  liberty  was  long  ago  brought  into 


28 


Federal  Government  in  Canada, 


[484 


this  country  from  the  parent  state,  and  has  now  developed  into 
goodly  proportions  amid  the  genial  influences  that  have  so  long 
surrounded  it. 

Of  Canada  we  may  now  truly  say  that  it  is  above  all  others 
"  a  land  of  settled  government "  resting  on  the  vital  principles 
of  political  freedom  and  religious  toleration,  and  all  those 
maxims  which,  experience  has  shown  the  world,  are  best  calcu- 
lated to  make  communities  happy  and  prosperous. 


LECTURE  II.  . 

GENERAL  FEATURES  OF  THE  FEDERAL 

SYSTEM. 

The  Dominion*  of  Canada  now  consists  of  seven  provinces 
regularly  organized  and  of  an  immense  area  of  undevelop;;d 
and  sparsely  settled  territory  extending  from  Ontario  to  the 
base  of  the  Rocky  Mountains,  and  temporarily  divided  into 
four  large  districts,  for  the  purposes  of  government.  The  area 
of  the  whole  Dominion  is  only  thirty  thousand  English  square 
miles  less  than  that  of  the  United  States,''  including  the  vast 


' "  The  history  of  the  circumstances  under  which  the  name  of  the '  Domin- 
ion '  came  to  be  given  to  the  united  provinces  shows  the  desire  of  the  Cana- 
dians to  give  to  the  confederation,  at  the  very  outset,  a  monarchical  like- 
ness in  contradistinction  to  the  republican  character  of  the  American  federal 
union.  We  have  it  on  the  best  authority  that  in  1866-67  the  question  arose 
during  a  conference  between  the  Canadian  delegates  and  the  Imperial  au- 
thorities what  name  should  be  given  to  the  confederation  of  the  provinces, 
and  it  was  first  proposed  that  it  should  be  called  'The  Kingdom  of  Canada ;' 
but  it  is  said  that  the  Earl  of  Carnarvon,  then  secretary  of  state  for  the  colo- 
nies, thought  such  a  designation  inadvisable,  chiefly  on  the  ground  that  it 
would  be  probably  objectionable  to  the  government  of  the  United  States, 
which  had  so  recently  expressed  its  disapprobation  of  the  attempt  of 
the  Emperor  Napoleon  to  establish  an  imperial  European  dynasty  in 
Mexico The  Canadian  delegates  made  due  allowance  for  the  deli- 
cacy of  the  sentiments  of  the  minister  and  agreed,  as  a  compromise,  to  the 
less  ambitious  title,  Dominion  of  Canada, — a  designation  recalling  that 
'  Old  Dominion,'  named  by  Raleigh  in  honor  of  the  virgin  Queen."  See 
article  by  author  in  the  Scottish  Review  for  April,  1885. 

'The  United  States  has  an  area  of  3,501,404  square  miles,  inclusive  of 
Alaska  (577,390);  Canada,  3,470,392,  or  about  the  same  area  as  Brazil; 
Europe,  3,800,000  square  miles. 

29 


30 


Fedet'cU  Goveimment  in  Canada. 


[486 


territory  of  Alaska.  Its  total  population  is  about  five  millions 
of  souls,  of  whom  probably  two  millions  and  a  quarter  live  in 
Ontario,  nearly  a  million  and  a  half  in  Quebec,  and  the  re- 
mainder' in  the  smaller  provinces  and  in  the  territories.  Out 
of  the  North-west  has  already  been  carved  the  province  of 
Manitoba  M'hich  has  made  remarkable  progress,  while  a  stream 
of  population  is  now  steadily  flowing  over  the  rich  prairies 
and  grazing  lands  of  the  territories.  The  Maritime  Provinces 
are  inhabited  by  an  English  people,  with  the  exception  of  cer- 
tain districts,  especially  in  New  Brunswick,  where  there  is  a 
small  Acadian  population  still  speaking  the  French  language. 
Quebec  has  a  French  population  of  at  least  a  million  and  a 
quarter  of  souls,  professing  the  Roman  Catholic  religion  and 
clinging  with  remarkable  tenacity  to  their  language  and  insti- 
tutions, and  commencing  to  swarm  over  certain  portions 
of  the  Western  Province.  The  population  of  Ontario  is 
mainly  English  and  Protestant ;  and  the  same  may  be  said  of 
the  other  provinces.  In  the  territories  and  British  Columbia 
there  is  a  large  Indian  population,  whose  interests  are  care- 
fully guarded  by  the  government  of  Canada.  The  industrial 
pursuits  of  Nova  Scotia  and  New  Brunswick,  both  washed  by 
the  Atlantic  ocean,  are  principally  maritime,  mining  and  com- 
mercial. Prince  Edward  Island  is  chiefly  agricultural.  The 
St.  Lawrence  is  the  natural  artery  of  communication,  by  the 
aid  of  a  magnificent  system  of  canals,  between  the  ocean  and 
the  provinces  of  Quebec  and  Ontario,  and  as  far  as  the  city  of 
Port  Arthur  at  the  head  of  Lake  Superior.  Railways  reach 
from  Halifax  to  the  growing  city  of  Vancouver  on  the  Pacific 
coast,  and  afford  great  facilities  of  commercial  intercourse 
between  the  new  territories  and  the  markets  of  the  old  prov- 
inces and  the  rest  of  the  world.  The  wealth  of  Ontario  arises 
from  her  agricultural  products,  aided  by  a  large  system  of 
manufactories.  Quebec  has  varied  interests,  farming,  manu- 
facturing and  commercial.  The  territories  promise  to  be  the 
principal  granary  of  the  continent,  while  British  Columbia 
has  large  undeveloped  wealth  in  her  mountains  and  in  the 


487] 


Federal  Government  in  Canada, 


31 


seas  that  wash  her  coast.  To  unite  and  give  a  community  of 
interest  to  all  these  territorial  divisions  of  the  Dominion — the 
Maritime  Provinces,  Quebec,  Ontario,  the  North-west  and 
British  Columbia — and  harmonize  the  ethnological  and  other 
differences  that  now  exist  within  the  limits  of  the  confederation, 
is  the  very  serious  responsibility  thrown  upon  the  central  and 
the  local  governments  which  derive  their  powers  from  the  Brit- 
ish North  America  Act  of  1867.  How  far  the  system  which 
this  act  provides  is  likely  to  promote  these  objects,  I  shall 
attempt  to  show  in  the  course  of  this  and  succeeriing  lectures. 

When  the  terras  of  the  Union  came  to  be  arranged  between 
the  provinces  in  1864,  their  conflicting  interests  had  to 
be  carefully  considered  and  a  system  adopted  which  would 
always  enable  the  Dominion  to  expand  its  limits  and  bring  in 
new  sections  until  it  should  embrace  the  northern  half  of  the 
continent,  which,  as  we  have  just  shown,  now  constitutes  the 
Dominion.  It  was  soon  found,  after  due  deliberation,  that 
the  most  feasible  plan  was  a  confederation  resting  on  those 
principles  which  experience  of  the  working  of  the  federation  of 
the  United  States  showed  was  likely  to  give  guarantees  of 
elasticity  and  permanency.  The  maritime  provinces  had  been 
in  the  enjoyment  of  an  excellent  system  of  laws  and  represen- 
tative institutions  for  many  years,  and  were  not  willing  to 
yield  their  local  autonomy  in  its  entirety.  The  people  of  the 
province  of  Quebec,  after  experience  of  a  union  that  lasted 
from  1841  to  1867,  saw  decidedly  great  advantages  to  therii- 
selves  and  their  institutions  in  having  a  provincial  government 
under  their  own  control.  The  people  of  Ontario  recognized 
equal  advantages  in  having  a  measure  of  local  government, 
apart  from  French  Canadian  influences  and  interference.  The 
consequence  was  the  adoption  of  the  federal  system,  which 
now,  after  twenty-six  years*  experience,  we  can  truly  say 
appears  on  the  whole  well  devised  and  equal  to  the  local  and 
national  requirements  of  the  people. 

We  owe  our  constitution  to  the  action  of  the  Parliament  of 
Great  Britain,  before  whom,  as  the  supreme  authority  of  the 


32 


Federal  Government  m  Canada. 


[488 


Empire,  the  provinces  of  Canada  had  to  come  and  express 
their  desire  to  be  fe<lerally  united.  In  the  addresses  to  tiie 
Queen  embodying  the  resolutions  of  the  Quebec  conference  of 
1864  the  legislatures  of  the  provinces  respectively  set  forth 
that  in  a  federation  of  the  British  North  American  provinces, 
"  the  system  of  government  best  adapted  under  existing  cir- 
cumstances to  protect  the  diversified  interests  of  the  several 
provinces,  and  secure  harmony  and  permanency  in  the  working 
of  the  Union  would  be  a  general  government  charged  with 
matters  of  common  interest  to  the  whole  country,  and  local 
governments  for  each  of  the  Canadas,  and  for  the  provinces  of 
Nova  Scotia,  New  Brunswick  and  Prince  Edward  Island, 
charged  with  the  control  of  local  matters  in  their  respective 
sections." 

In  the  third  paragraph  the  resolutions  declare  that  "in 
framing  a  constitution  for  the  general  government,  the  confer- 
ence, with  a  view  to  the  perpetuation  of  our  connection  with 
the  mother  country,  and  the  promotion  of  the  best  interests  o' 
the  people  of  these  provinces,  desire  to  follow  the  model  of  the 
British  constitution  so  far  as  our  circumstances  permit."  In 
the  third  paragraph  it  is  set  forth  :  "  The  executive  authority 
or  government  shall  be  vested  in  the  sovereign  of  the  United 
Kingdom  of  Great  Britain  and  Ireland,  and  be  administered 
according  to  the  well-understood  principles  of  the  British  con- 
stitution, by  a  sovereig'.i  personally,  or  by  the  representative 
of  the  sovereign  dul;  authorized."  * 

In  these  three  parugraphs  we  see  tersely  expressed  the  lead- 
ing principles  on  which  our  system  of  government  rests :  a 
federation  with  a  central  government  exercising  general  powers 
over  all  the  members  of  the  union,  and  a  number  of  local  gov- 
ernments having  the  control  and  management  of  certain  mat- 


>  The  preamble  of  the  B.  N.  A.  Act  of  1867  sets  forth  that  "  the  provinces 
of  Canada,  Nova  Scotia  and  New  Brunswick  have  expressed  their  desire  to 
be  federally  united  into  one  dominion  under  the  Crown  of  the  United 
Kingdom  of  Great  Britain  and  Ireland,  with  a  constitution  similar  in  prin- 
ciple to  that  of  the  United  Kingdom." 


489] 


Fedeixd  Oovemment  in  Canada. 


33 


ters  naturally  and  conveniently  falling  within  their  defined 
jurisdiction,  while  each  government  is  administered  in  accord- 
ance with  the  British  system  of  parliamentary  institutions. 
These  are  the  fundamental  principles  which  were  enacted  into 
law  by  the  British  North  America  Act  of  186/. 

Before  I  proceed  to  refer  to  the  general  features  of  the  fed- 
eral system  I  may  here  appropriately  observe  that  the  practical 
operation  of  the  government  of  Canada  affords  a  forcible  illus- 
tration of  a  government  carried  on  not  only  in  accordance  with 
the  legal  provisions  of  a  fundamental  law,  but  also  in  con- 
formity with  what  has  been  well  described  by  eminent  writers 
as  conventions  or  understandings  which  do  not  come  within 
the  technical  meaning  of  laws  since  they  cannot  be  enforced  by 
the  courts.  It  was  Professor  Freeman  ^  who  first  pointed  out 
this  interesting  and  important  distinction,  but  Professor  Dicey 
has  elaborated  it  in  a  recent  work,  in  which  he  very  clearly 
shows  that  "  constitutional  law  "  as  we  understand  it  in  Eng- 
land and  in  this  country,  consists  of  two  elements :  "  The  one 
element,  which  I  have  called  the  '  law  of  the  constitution '  is  a 
body  of  undoubted  law ;  the  other  element  which  I  have  called 
the  '  conventions  of  the  constitution,'  consists  of  maxims  or 
practices  which,  though  they  regulate  the  ordinary  conduct  of 
the  Crown  and  of  Ministers  and  of  others  under  the  constitu- 
tion, are  not  in  strictness  law  at  all."''  In  Canada  this 
distinction  is  particularly  noteworthy.  We  have  first  of  all 
the  British  North  America  Act'  which  lays  down  the  legal 
rules  for  the  division  of  powers  between  the  respective  federal 
and  provincial  authorities,  and  for  the  government  of  the  fed- 
eration generally.  But  it  is  a  feature  of  this  government  that, 
apart  from  the  written  law,  there  are  practices  which  can  only 
be  found  in  the  usages  and  conventions  that  have  originated 
in  the  general  operation  of  the  British  constitution — ^that  mass 


'Freeman's  Growth  of  the  English  Constitution,  pp.  114, 115. 
'  Dicey's  Law  of  the  Constitution,  p.  25. 
» Imp.  Act,  30-31  Vict.  c.  3. 


34 


Federal  Oovemment  in  Canada, 


[490 


of  charters,  statutes,  practices  and  conventions,  which  must  be 
sought  for  in  a  great  number  of  authorities.  For  example,  if 
we  wish  in  Canada  to  see  whether  a  special  power  is  given  to 
the  dominion  or  to  the  provincial  governments  we  must  look 
to  the  written  constitution — to  the  ninety-first  and  ninety-sec- 
ond sections,  to  which  I  shall  refer  later  on — but  if  we  would 
understand  the  nature  of  the  constitutional  relations  between 
the  governor-general  and  his  advisers  we  must  study  the  con- 
ventions and  usages  of  parliamentary  or  responsible  govern- 
ment as  it  is  understood  in  England  and  Canada.  The  courts 
accordingly  will  decide  whether  the  parliament  or  the  legisla- 
tures have  a  power  conferred  upon  them  by  the  constitutional 
law  whenever  a  case  is  brought  before  them  by  due  legal  pro- 
cess ;  but  should  they  be  asked  to  adjudicate  on  the  legality  of 
a  refusal  by  a  government  to  retire  from  office  on  an  adverse 
vote  of  the  people's  house,  they  could  at  once  say  that  it  was  a 
matter  which  was  not  within  their  legal  functions,  but  a 
political  question  to  be  settled  in  conformity  with  political  con- 
ventions with  which  they  had  nothing  whatever  to  do.  Or  if 
Parliament  should  continue  to  sit  beyond  the  five  years'  term, 
to  which  it  is  restricted  by  law,  and  then  pass  certain  acts,  the 
constitutionality  of  such  legislation  could  be  questioned,  and 
the  courts  could  declare  it  null  and  void.  Or  again,  the  con- 
stitutional act  requires  that  every  vote  of  money  must  be  first 
recommended  formally  by  the  governor-general,  and  if  it 
should  appear  that  parliament  had  passed  an  act  without  that 
legal  formality,  the  courts  could  be  called  upon  to  consider  the 
legal  effect  of  this  important  omission.  On  the  other  hand,  it 
is  a  well  understood  maxim  that  no  private  member  can  ini- 
tiate a  measure  imposing  a  tax  on  the  people,  but  it  should 
come  from  a  minister  of  the  Crown — a  rule  rigidly  observed 
in  parliament — but  this  is  not  a  matter  of  legal  enactment 
which  the  courts  can  take  cognizance  of  though  it  is  a  conven- 
tion of  the  unwritten  constitution  which  is  based  on  well- 
understood  principles  of  ministerial  responsibility.  I  might 
pursue  this  subject  at  greater  length,  but  I  think  I  have  said 


491] 


Federal  Government  in  Canada. 


80 


enough  to  show  you  how  interesting  is  the  study  of  our  con- 
stitution and  what  a  wide  field  of  reflection  it  opens  up  to  the 
student.  We  have  not  only  a  written  constitution  to  be  inter- 
preted whenever  necessary  by  the  courts,  but  a  vast  store-house 
of  English  precedents  and  authoritative  maxims  to  guide  us — 
in  other  words,  an  unwritten  law  which  has  as  much  force 
practically  in  the  operation  of  our  p<>litical  system  as  any  legal 
enactment  to  be  found  on  the  statute  book. 

The  British  North  America  Act  gave  legal  effect  to  the 
wishes  of  the  people  of  Canada,  as  expressed  in  the  addresses 
of  their  legislatures,  and  is  consequently  the  fundamental  law, 
or  constitution  of  the  Dominion,  only  to  be  amended  in  its 
material  and  vital  provisions  by  the  same  authority  that 
enacted  it.^  Power  is  only  given  in  the  act  itself  to  the 
Canadian  legislature  for  the  amendment  or  alteration  of  cer- 
tain provisions  which  are  of  a  merely  temporary  character,  or 
affect  the  machinery  with  which  the  parliament  or  legislatures 
have  to  operate — such  as  the  readjustment  of  representation, 
the  elections  and  trial  of  controverted  elections,  the  constitution 
of  executive  authority  in  Nova  Scotia  and  New  Brunswick, 
and  other  matters  which  do  not  really  affect  the  fundamental 
principles  of  the  constitution.  All  those  provisions  which  con- 
stitute the  executive  authority  of  the  Dominion,  regulate  the 
terms  of  union,  and  define  the  limits  of  the  jurisdiction  of  the 
several  governments,  are  unalterable  except  by  the  supreme 
legislature  of  the  empire. 

We  have  now  to  consider,  in  the  first  place,  the  position 
that  the  Dominion  of  Canada  occupies  in  the  Empire,  and 
then  the  relations  ia  government  occupies  towards  the  govern- 
ments of  the  provinces,  with  such  remarks  on  the  powers  and 


*  The  act  of  1867  has  been  amended  by  two  acts,  Imp.  Stat.  38-39  Vict., 
c.  38,  to  remove  certain  doubts  with  respect  to  the  power  of  the  Canadian 
parliament  under  section  18 ;  and  34  and  35  Vict.,  c.  28,  to  remove  donbt« 
as  to  the  powers  of  the  Canadian  parliament,  to  establish  provinces  in  the 
territories. 


36 


Fideral  Qovemment  in  Canada, 


[492 


functions  and  practical  operation  of  the  Constitution  as  are 
necessary  to  make  the  system  intelligible. 

The  Queen  is  the  head  of  the  executive  authority  and  gov- 
ernment of  Canada.^  She  is  as  much  the  sovereign  of  Canada 
as  of  England  or  Scotland,  and  her  supremacy  can  be  alone 
acknowledged  in  all  executive  or  legislative  acts  of  this 
dependency.  As  she  is  unable  to  be  present  in  person  in 
Canada,  she  is  represented  by  a  governor-general  appointed  by 
Her  Majesty  in  council.  In  the  following  chapter  I  shall 
refer  to  his  duties  in  Canada,  and  it  is  therefore  pertinent  here 
to  make  only  a  few  necessary  references  to  his  im^^rial  position. 

This  high  functionary,  generally  chosen  from  public  men  of 
high  standing  in  England,  has  dual  responsibilities,  for  he  is 
at  once  the  governor-in-chief  of  a  great  dependency,  who  actr 
under  the  advice  of  a  ministry  responsible  to  parliament,  and 
at  the  same  time  the  guardian  of  imperial  interests.  He  is 
bound  by  the  terms  of  his  commission,  and  can  only  exercise 
such  authority  as  is  expressly  or  impliedly  entrusted  to  him.^ 
He  must  report  regularly  on  all  those  imperial  and  other  mat- 
ters on  which  the  secretary  of  state  for  the  colonies  should  be 
informed.  For  instance,  in  the  negotiations  for  the  recent 
fishery  treaty  he  was  the  avenue  for  all  communications  be- 
tween the  Canadian  and  imperial  governments.  Canada  being 
a  colony,  and  not  a  sovereign  state,  cannot  directly  negotiate 
treaties  with  a  foreign  power,  but  must  act  through  tl  'nter- 
mediary  of  the  imperial  authorities,  with  whom  the  governor- 
general,  as  an  imperial  officer,  must  communicate  on  the  part 
of  our  government  not  only  its  minutes  of  council,  but  his 
own  opinions  as  well,  on  the  question  under  consideration.  In 
case  of  bills  reserved'  for  the  consideration  of  the  imperial 


^  B.  N.  A.  Act,  sec.  9.  "  The  executive  government  and  authority  of  and 
over  Canada  is  hereby  declared  to  continue  and  be  vested  in  the  Queen." 

'  Musgrove  «.  Fulido,  5  App.  Cas.,  102. 

'A  bill  affecting  the  fishery  dispute  between  Canada  and  the  United 
States  was  formally  reserved  in  1886. 


493] 


Federal  Oovemment  in  Canada. 


37 


government  he  fonvards  them  to  the  secretary  of  state  with 
his  reasons  for  reserving  them.  The  British  North  America 
act  provides  indeed  that  copies  of  all  acts  of  the  Canadian 
parliament  should  be  transmitted  to  the  secretary  of  state 
for  the  colonies,  that  they  may  be  duly  considered  and  disal- 
lowed within  two  years'  in  case  they  are  found  to  conflict  with 
im[)erial  interests  and  are  beyond  the  legitimate  powers  of 
Canada  as  a  dependency,  still  in  certain  essential  respects 
under  the  control  of  the  imperial  state.  The  commission  and 
instructions,  which  the  governor-general  receives  from  the 
Queen's  government,  formerly  contained  a  list  of  bills  which 
should  be  formally  reserved,  divorce  bills  among  other  meas- 
ures ;  but  since  the  passage  of  the  British  North  America  Act, 
and  the  very  liberal  measure  of  self-government  now  conceded 
to  Canada,  these  instructions  have  been  materially  modified. 


^  B.  N.  A.  Act,  1867,  sec.  55.  Where  a  bill  passed  by  the  houses  of  the  par- 
liament  is  presented  to  the  governor-general  for  the  Queen's  assent,  he  shall 
declare,  according  to  his  discretion,  but  subject  to  the  provisions  of  this  act 
and  to  her  majesty's  instructions,  either  that  he  assents  thereto  in  the 
Queen's  name,  or  that  he  withholds  the  Queen's  assent,  or  that  he  reserves 
the  bill  for  the  signification  of  the  Queen's  pleasure. 

56.  Where  the  governor-general  assents  to  a  bill  in  the  Queen's  name,  he 
shall  by  the  first  convenient  opportunity  send  an  authentic  copy  of  the  act 
to  one  of  her  majesty's  principal  secretaries  of  state,  and  if  the  Queen  in 
council,  within  two  years  after  receipt  thereof  by  the  secretary  of  state, 
thinks  fit  to  disallow  the  act,  such  disallowance  (with  a  certificate  of  the 
secretary  of  state  of  the  day  on  which  the  act  was  received  by  him)  being 
signified  by  the  governor-general,  by  speech  or  message  to  each  of  the 
houses  of  the  parliament  or  by  proclamation,  shall  annul  the  act  from  and 
after  the  day  of  such  signification. 

57.  A  bill  reserved  for  the  signification  of  the  Queen's  pleasure  shall  not 
have  any  force  unless  and  until  within  two  years  from  the  day  on  which  it 
was  presented  to  the  governor-general  for  the  Queen's  assent,  the  governor- 
general  signifies,  by  speech  or  message  to  each  of  the  houses  of  the  parlia- 
ment or  by  proclamation,  that  it  has  received  the  assent  of  the  Queen  in 
council. 

An  entry  of  every  such  speech,  message,  or  proclamation  shall  be  made 
in  the  journal  of  each  house,  and  a  duplicate  thereof  duly  attested  shall  be 
delivered  to  the  proper  officer  to  be  kept  among  the  records  of  Canada. 


38 


Federal  Government  in  Canada. 


[494 


and  it  is  only  in  very  exceptional  instances  that  bills  are  ex- 
pressly reserved.  The  general  power  possessed  by  the  impe- 
rial government  of  disallowing  any  measure,  within  two  years 
from  its  receipt,  is  considered  as  a  sufficient  check,  as  a  rule, 
upon  colonial  legislation.  The  cases  where  a  bill  is  disallowed 
are  now  exceedingly  limited.  Only  when  the  obligations  of 
the  Empire  to  a  foreign  power  are  affected,  or  an  imperial 
statute  is  infringed  in  matters  on  which  the  Canadian  parlia- 
ment has  not  full  jurisdiction,  is  the  supreme  authority  of 
England  likely  to  be  exercised. 

The  imperial  parliament  has  practically  given  the  largest 
possible  rights  to  the  Domi~'on  government  to  legislate  on 
all  matters  of  a  Dominion  character  and  importance  which  can 
be  exercised  by  a  colonial  dependency ;  and  the  position  Canada 
consequently  occupies  is  that  of  a  semi-independent  power. 
Within  the  limits  of  its  constitutional  jurisdiction,  and  subject 
to  the  exercise  of  disallowance  under  certain  conditions,  the 
Dominion  parliament  is  in  no  sense  a  mere  delegate  or  agent 
of  the  imperial  parliament,  but  enjoys  an  authority  as  plenary 
and  ample  as  that  great  sovereign  body  in  the  plentitude  of  its 
power  possesses.^  This  assertion  of  the  l^islative  authority 
of  the  Dominion  legislature  is  quite  reconcilable  with  the 
supremacy  of  the  imperial  parliament  in  all  matters  in  which  it 
should  intervene  in  the  interest  of  the  empire.  For  that  par- 
liament did  not  part  with  any  of  its  rights  as  the  supreme 
authority  of  the  empire,  when  it  gave  the  Dominion  govern- 
ment "  exclusive  authority  "  to  legislate  on  certain  classes  of 
subjects  enumerated  in  the  act  of  union,  and  to  which  we  shall 
later  on  refer  at  length.  This  point  has  been  clearly  explained 
by  Mr.  Justice  Gray  of  the  supreme  court  of  British  Columbia, 
whose  opinion  as  an  eminent  judicial  authority  is  strengthened 
by  the  fact  that  he  was  one  of  the  members  of  the  Quebec  con- 
vention of  ]  864.     In  deciding  against  the  constitutionality  of 

*  See  Begtna  vs.  Burah,  3  App.  Cas.,  889 ;  Hodge  t».  the  Qaeen,  9  lb.,  117. 


496] 


Federal  Oovemment  in  Oanada, 


39 


the  Chinese  tax  bill,  passed  by  the  legislature  of  his  province, 
he  laid  down  that  "the  British  North  America  Act  (1867) 
was  framed,  not  as  altering  or  defining  the  changed  or  relative 
positions  of  the  provinces  towards  the  imperial  government, 
but  solely  as  between  themselves/'  Proceeding  he  said  that 
the  imperial  parliament  "  as  the  paramount  or  sovereign  au- 
thority could  not  be  restrained  from  future  legislation.  The 
British  North  America  Act  was  intended  to  make  legal  an 
agreement  which  the  provinces  decided  to  enter  into  as  between 
themselves,  but  which,  not  being  sovereign  states,  they  had  no 
power  to  make.  It  was  not  intended  as  a  declaration  that  the 
imperial  government  renounced  any  part  of  its  authority."  * 


*  Judgment  of  Mr.  Justice  Graj  on  the  Chinese  tax  bill,  Sept.  23d,  1878. 

An  imperial  statute  passed  in  1865  (28  and  29  Vict.,  c.  63)  expressly 
declares  that  any  colonial  law  "  in  any  respect  repugnant  to  the  provisions 
of  any  act  of  parliament  extending  to  the  colony  to  which  such  law  may 
relate,"  shall  to  the  extent  of  such  repugnancy  be  "  absolutely  void  and  in- 
operative."  And  in  conntruing  an  act  of  parliament,  "  it  shall  be  said  to 
extend  to  any  colony,  when  it  is  made  applicable  to  such  colony  by  the 
express  words  or  necessary  intendment "  of  the  same.  Since  the  passage  of 
this  act  Canada  has  received  a  larger  measure  of  self-government  in  the 
provisions  of  the  B.  N.  A.  act,  which  confers  powers  on  the  Dominion  and 
the  provincial  authorities.  No  one  can  doubt  that  it  is  competent,  as  Mr. 
Justice  Gray  has  intimated,  for  parliament  to  pass  any  law  it  pleases  with 
respect  to  any  subject,  within  the  powers  conferred  on  the  Dominion  or 
provinces :  and  any  enactment  repugnant  to  that  imperial  statute  would  be 
declared  null  and  void  by  the  courts,  should  the  question  come  before  them. 
But  the  point  has  been  raised,  whether  it  is  in  the  power  of  the  Canadian 
parliament  or  legislatures  to  pass  an  act  repealing  an  imperial  statute 
passed  previous  to  the  act  of  1867,  and  dealing  with  a  subject  within  the 
powers  granted  to  the  Canadian  authorities.  It  must  be  here  mentioned 
that  the  imperial  government  refused  its  assent  to  the  Canadian  copyright 
act  of  1872,  because  it  was  repugnant,  in  the  opinion  of  the  law  oflScers  of 
the  Crown,  to  the  provisions  of  an  imperial  statute  of  1842  extending  to 
the  colony  (Imp.  Stat.,  5  and  6  Vict.,  c.  45;  Can.  Sess.  P.,  1875,  No.  28). 
On  the  other  hand,  in  the  debate  on  the  constitutionality  of  the  Quebec 
Jesuits'  bill  mentioned  later  on,  it  was  contended  by  the  minister  of  justice 
that  a  provincial  legulatnre  "  legislating  upon  subjects  which  are  given  it 
by  the  B.  N.  A.  act,  has  the  power  to  repeal  an  imperial  statute,  prior  to 
the  B.  N.  A.  act,  affecting  those  subjects."    In  support  of  this  position  he 


40 


Federal  Government  in  Canada. 


[49G 


But,  as  I  have  already  shown,  this  supreme  authority  of 
the  imperial  government  will  be  exercised  only  in  cases  where 
interference  is  necessary  in  the  interests  of  the  Empire,  and  in 
the  discharge  of  its  obligations  towards  foreign  powera.  In 
the  case  of  all  matters  of  Dominion  or  Canadian  concern, 
within  the  rights  and  privileges  extended  to  Canadians  by  the 
British  North  America  Act,  and  in  accord  with  the  general 
policy  now  pursued  towards  all  colonies  exercising  a  full  sys- 
tem of  local  self-government,  the  imperial  authorities  can  con- 
stitutionally claim  no  authority  whatever.  That  is,  they  can 
interfere,  to  quote  a  distinguished  Canadian  statesman,  "only 
in  instances  n  which,  owing  to  the  existence  of  substantial 
imperial,  as  distinguished  from  Canadian,  interests  it  is  con- 


k 


I II  x 


referred  to  three  decisions  of  the  judicial  comtnittee  of  the  privy  council. 
One  of  these,  in  Harris  V8.  Davies  (10  App.  Cas.,  p.  279),  held  that  the  leg- 
islature of  New  South  Wales  had  power  to  repeal  a  statute  of  James  I. 
with  respect  to  costs  in  case  of  a  verdict  for  slander.  The  second  case  was 
Powell  vs.  Apollo  Candle  Co.  (10  App.  Cas.,  p.  282),  in  which  the  princi- 
ples laid  down  in  Regina  vs.  Burah  (3  App.  Cas.,  889)  and  in  Hodge  vs.  the 
Queen  (9  App.  Cas.,  p.  117)  were  affirmed.  The  third  and  most  important 
case  as  respects  Canada  was  the  Queen  and  Biel  (10  App.  Cas.,  p.  675), 
in  which  it  was  decided  that  the  Canadian  parliament  had  power  to  pass 
legislation  changing,  or  repealing  (if  necessary)  certain  statutes  passed  for 
the  regulation  of  the  trial  of  offences  in  Rupert's  Land,  before  it  became 
a  part  of  the  Canadian  domain  (see  Sir  /.  Thompson's  speed).  Can.  Hansard, 
March  27, 1889).  But  several  high  authorities  do  not  appear  to  justify  the 
contention  cf  the  minister  of  justice.  See  Hearn's  Government  of  England, 
app.  II.;  "The  Colonies  and  the  Mother  Country;"  Todd's  Government 
in  the  Colonies,  pp.  188-192,  etc. ;  Dicey's  Law  of  the  Constitution,  pp.  96, 
et  aeq.  The  question  is  too  important  to  be  treated  hastily,  especially  as 
it  will  come  up  soon  in  connection  with  the  copyright  act  of  1889,  in  which 
the  same  conflict  as  in  1875  arises.  No  doubt  the  fundamental  principle 
that  rests  at  the  basis  of  our  constitutional  system  is  to  give  Canada  as  full 
power  over  all  matters  affecting  her  interests  as  is  compatible  with  imperial 
obligations.  The  parliament  and  legislatures  must  necessarily  repeal,  and 
have  time  and  again  repealed,  imperial  enactments,  especially  those  not 
suitable  to  the  circumstances  of  the  country.  See  debate  of  April  20,  1889, 
Canadian  Commons,  on  the  new  copyright  bill,  which  by  sec.  7  can  only 
come  into  force  by  a  proclamation  of  the  governor  in  council. 


497] 


Federal  Qoveimment  in  Canada. 


41 


sidered  that  full  freedom  of  action  is  not  vested  in  the  Cana- 
dian people."* 

The  ooniplete  freedom  of  action  now  enjoyed  by  Canada  in 
matters  affecting  the  commercial  interests  of  the  empire,  can  be 
understood  by  reference  to  the  fiscal  systen  now  in  operation 
in  Canada.  This  system,  generally  known  as  the  *'  National 
Policy/'  since  its  adoption  in  1879,  imiK)se8  a  protective  tariff, 
which  is  in  direct  antagonism  with  the  free  trade  policy  of  the 
parent  state,  and  is  chiefly  intended  to  assist  Canadian  manu- 
jfactories  against  British  and  foreign  com))etition.  This  policy, 
at  the  outset,  was  naturally  received  with  much  disfavor  in 
England,  but  when  an  appeal  was  directly  made  in  the  impe- 
rial house  of  commons  to  disallow  it,  the  secretary  of  state  for 
the  colonies,  on  the  part  of  the  government,  presented,  as  a 
reason  for  non-interference,  that  the  measure  in  question  was 
not  in  excess  of  the  rights  of  legislation  guaranteed  by  the 
British  North  America  Act,  under  which  (subject  only  to 
ti'eaty  obligations),  the  fiscal  policy  of  Canada  rests  with  the 
Dominion  parliament.  He  further  stated  that,  however  much 
the  government  might  regret  the  adoption  of  a  protective  sys- 
tem, they  did  not  feel  justified  in  opposing  the  wishes  of  the 
Canadian  people  in  this  matter.' 

The  queen's  privy  council  of  England  has  also  the  right 
to  allow  appeals  to  the  judicial  committee— one  of  the  survi- 
vals of  the  authority  of  an  ancient  institution  of  England — 
from  the  courts  of  Canada.  This  right  is  only  exercised  on 
principles  clearly  laid  down  by  this  high  tribunal,  but  it  is 


*  Hon.  Mr.  Blake  in  a  despatch  to  the  secretary  of  state  for  the  oobniefi. 
Can.  Bess.  P.,  1877,  No.  13,  p.  8. 

'"The  cluuse  with  respect  to  differential  duties,  (English  Hans.  Deb., 
Vol.  244,  p.  1811),  is  now  left  out  of  the  governor-general's  instruc- 
tions,  and  the  imperial  goremment  arc  content  to  reljr  upon  the  prerogatiTe 
right  of  disallowance,  as  a  sufficient  security  against  the  enactment  of  anjr 
measure  by  tlie  parliament  of  Canada,  that  should  be  of  such  character  •■ 
to  call  for  the  interposition  of  the  royal  veto."  Todd's  Pari.  Goyemment 
in  the  Colonies,  p.  187. 
4 


42 


Federal  Government  in  Canada, 


[498 


If 


,11' 

m 


m 


emphatically  a  right  to  be  claimed  by  the  Canadian  people  as 
forming  part  of  the  6.npire  under  the  sovereignty  of  England. 
It  is  a  right  sparingly  exercised,  for  the  people  of  Canada  have 
great  confidence  in  their  own  courts,  where  justice  is  adminis- 
tered with  legal  acumen  and  strict  impartiality ;  but  there  are 
decided  advantages  in  having  the  privilege  of  resorting  in  some 
cases,  especially  those  affecting  the  constitution,  to  a  tribunal 
which  is  generally  composed  of  men  whose  great  learning 
illustrates  all  those  traditions  which  make  the  decisions  of 
England's  courts  respected  the  world  over. 

In  the  foregoing  paragraphs  I  have  mentioned  the  relations 
that  should  naturally  exist  between  the  supreme  head  of  the 
empire  and  its  colonial  dependencies.  I  may  here  add,  what 
will  be  obvious  to  every  one,  that  the  power  over  peace  and 
war,  and  the  general  control  of  such  subjects  as  fall  within  the 
province  of  international  law,  are  vested  in  the  home  govern- 
ment, and  cannot  be  interfered  with  in  the  least  degree  by  the 
government  of  the  Dominion. 

With  these  exceptions  which  limit  the  jurisdiction  of  the 
Dominion  as  a  dependency,  Canada  possesses  under  the  British 
North  America  Act,  and  in  accordance  with  the  general 
policy  of  England  towards  her  self-governing  colonies,  a  prac- 
tically sovereign  authority  within  the  limits  of  her  territory, 
and  has  assumed  all  the  proportions  of  an  empire.  Her 
constitution  enables  her  to  establish  new  provinces  with 
complete  systems  of  government,  as  large  as  any  of  the 
commonwealths  of  the  American  Republic.  The  province  of 
Manitoba  has  already  been  formed  out  of  the  North-west 
Territories  acquired  in  1870  from  the  company  of  Hudson 
Bay  adventurers  who  held  a  charter  from  the  days  when  sov- 
ereigns recklessly  granted  their  followers  vast  areas  of  lands, 
larger  than  the  great  kingdoms  of  Europe.  The  territories  are 
r^ulated  by  the  Dominion  and  granted  from  time  to  time 
such  privileges  as  are  commensurate  with  their  increasing  pop- 
ulation and  c  ipacity  to  carry  on  a  system  of  local  self-govern- 
ment.   The  Dominion  appoints  the  governors  of  the  proviooea 


499] 


Federal  Oovemment  in  Canada, 


43 


and  can  dismiss  them  under  the  provisions  of  the  consti- 
tution, occupying  in  this  respect  the  position  that  England 
formerly  held  with  reference  to  the  provinces  before  the  union 
of  1867. 

Perhaps  no  one  fact  more  clearly  illustrates  the  in^portant 
position  which  Canada  has  attained  within  a  few  years,  than 
the  recognition  by  the  imperial  government  of  her  absolute 
right  to  be  consulted,  and  have  a  direct  voice  in  the  negotia- 
tion of  all  treaties  which  immediately  affect  her  interests.  In 
the  arrangement  of  the  Washington  treaties  of  1871  and  1883, 
which  dealt  with  the  question  of  the  fisheries — still  unhappily 
unsettled  owing  to  the  refusal  of  the  Senate  to  ratify  the  last 
treaty — Canada  was  represented  by  one  of  her  ablest  states- 
men in  each  case.^  In  negotiations  between  Canada,  France 
and  Spain  for  a  commercial  treaty,  the  imperial  government 
specially  commissioned  the  Canadian  high  representative  in 
London  with  full  powers  to  act.  The  appointment  of  the 
high  commissioner  of  Canada  was  of  itself  a  concession  to  the 
growing  importance  of  Canada  as  a  dependency  of  the  empire 
and  of  the  consequent  necessity  that  has  arisen  of  having  in 
London  a  representative  who  would  occupy  a  higher  position 
than  the  previous  agents  of  the  colonies.  In  the  case  of  all 
treaties  affecting  Canada  directly,  their  ratification  depends  on 
the  assent  of  her  parliament.^  In  fact,  the  history  of  all  impe- 
rial legislation  with  respect  to  extradition  and  other  treaties, 
also  proves  the  desire  of  the  imperial  authorities  to  give  due 
scope  to  Canadian  legislation  as  far  as  it  is  compatible  with 


^In  1871  by  Sir  John  Macdonald,  then  as  now,  Premier.  In  18S8  by  Sir 
Charles  Tapper,  now  High  Commissioner  of  Canada  in  London. 

'  See  Can.  Stat,  for  1888  (treaty  of  Washington),  c.  3,  sec.  3,  and  art.  xvi 
of  schedule.  The  132d  section  of  the  B.  N.  A.  Act  provides :  "  The  parlia- 
ment and  government  of  Canada  shall  have  all  powers  necessary  or  proper 
for  performing  the  obligations  of  Canada  or  of  any  province  thereof,  as  part 
of  the  British  Empire,  towards  foreign  countries,  arbing  under  treaties 
between  the  empire  and  such  foreign  countries."  Also  comments  of  Dr. 
Todd  in  Pari.  Govt,  in  Colonies,  p.  205. 


44 


Federal  Government  in  Canada. 


[500 


the  interests  of  the  empire.  In  some  treaties  it  is  expressly 
stipulated  that  they  shall  be  only  applicable  to  the  colonial 
possessions  "  so  far  as  the  laws,  for  the  time  being,  in  force  in 
such  colonies  will  allow."*  The  large  measure  of  self-govern- 
ment that  Canada  enjoys  in  other  particulars  will  be  seen  in 
the  course  of  these  lectures. 

We  come  now  to  consider  the  nature  of  the  federal  system, 
the  respective  powers  of  the  dominion  and  provincial  govern- 
ments, and  the  relations  that  they  bear  to  one  another  under 
the  constitution.  We  have  already  seen  by  the  three  reso- 
lutions of  the  Quebec  conference  that  I  have  cited,  that  the 
object  of  the  founders  of  the  union  was  to  give  to  the  central 
authority  the  control  over  matters  of  general  or  qimsi  national 
importance,  and  to  the  provincial  governments  jurisdiction  over 
matters  of  a  local  or  provincial  nature:  In  arranging  the 
details  of  the  union  the  framers  were  naturally  called  upon  to 
study  carefully  the  American  constitution  in  its  origin  and 
development.  In  1864  the  civil  war  was  not  yet  brought  to 
a  close,  and  statesmen,  the  worl J  over,  were  naturally  in  doubt 
as  to  its  effects  on  the  constitution  and  union  at  large.  Cana- 
dian statesmen  saw  that  ever  since  the  foundation  of  the  weak 
confederation  of  1776,  and  of  the  constitution  that  was  subse- 
quently adopted  in  1787,  to  give  efficiency,  strength  and 
pCTmanency  to  the  union, — "  to  form  a  more  perfect  union," 
in  the  language  of  its  preamble, — a  great  struggle  had  been 
going  on  between  the  national  and  the  state  governments  for 
the  supremacy.  They  saw  that  certain  states  had  persistently 
asserted  the  doctrine  of  State  sovereignty,  and  the  right  of 
nullifying  or  refusing  to  be  bound  by  certain  acts  of  the 
national  government.  Nullification  and  secession,  it  was  seen, 
wer«  justified  by  lawyers  and  statesmen,  as  the  last  resort  of 
sovereign  states,  when  what  was  believed  to  be  their  inherent 
rights  were  invaded  by  the  national  government.  The  states- 
men that  assembled  at  Quebec  believed  that  it  was  a  defect  in 


'  See  treaty  with  Russia  in  Can.  Statutes  for  1887. 


601] 


Federal  QovemmerU  in  Canada, 


U 


the  American  constitution  to  have  made  the  national  govern- 
ment alone  one  of  enumerated  powers,  and  to  have  left  to  the 
States  all  the  powers  not  expressly  taken  from  them.^ 

For  these  reasons  mainly  the  powers  of  both  the  Dominion 
and  the  Provincial  governments  are  stated,  as  far  as  practicable, 
in  express  terms  with  the  view  of  preventing  a  conflict  between 
them;  the  powers  that  are  not  within  the  defined  jurisdiction 
of  th*"  T)rovincial  governments  are  reserved  in  general  terms  to 
the  central  authority.  In  other  words  "  the  residuum  of 
power  is  given  to  the  central  instead  of  to  the  state  authori- 
ties." In  the  British  North  America  Act  we  find  set  forth 
in  express  words : 

1 .  The  powers  vested  in  the  Dominion  government  alone ; 

2.  The  powers  vested  in  the  provinces  alone ; 

3.  The  powers  exercised  by  the  Dominion  government 
and  the  provinces  concurrently ; 

4.  Powers  given  to  the  Dominion  government,  in  general 
terms. 

The  powers  vested  in  the  parliament  of  Canada  are  set  forth 
in  the  ninety-first  section  of  the  constitution,  which  enacts  that 
the  Queen  with  the  advice  and  consent  of  the  Senate  and 
House  of  Commons  may  "  make  laws  for  the  peace,  order  and 
good  government  of  Canada,  in  relation  to  all  matters  not 
coming  within  the  classes  of  subjects  by  this  act  assigned 
exclusively  to  the  legislatures  of  the  provinces ;  and  for  greater 
certainty,  but  not  so  as  to  restrict  the  generality  of  the  fore- 
going terms  of  this  section,  it  is  hereby  declared  that  (notwith- 
standing anything  in  this  act)  the .  exclusive  legislative 
authority  of  the  parliament  of  Canada  extends  to  all  matters 
coming  within  the  classes  of  subjects  next  hereinafter  enumer- 
ated, that  is  to  say : 

1.  The  public  debt  and  property. 

2.  The  regulation  of  trade  and  commerce. 


'  See  remarks  of  Sir  John  Macdonald,  then  attorney-general,  now  pre- 
mier of  Canada :  Confederation  debates,  p.  33. 


46 


Federal  Government  in  Canada, 


[502 


!•' 


m 

m 


3.  The  raising  of  money  by  any  mode  or  system  of  taxation. 

4.  The  borrowing  of  money  on  the  public  credit. 

5.  Postal  service. 

6.  The  census  and  statistics. 

7.  Militia,  military  and  naval  service  and  defence. 

8.  The  fixing  of  and  providing  for  the  salaries  and  allow- 
ances of  civil  and  other  officers  of  the  government  of  Canada. 

9.  Beacons,  buoys,  lighthouses  and  Sable  Island. 

10.  Navigation  and  shipping. 

11.  Quarantine  and  the  establishment  and  maintenance  of 
marine  hospitals. 

12.  Sea-coast  and  inland  fisheries. 

13.  Ferries  between  a  province  and  a  British  or  foreign 
country,  or  between  two  provinces. 

14.  Currency  and  coinage. 

15.  Banking,  incorporation  of  banks  and  the  issue  of  paper 
money. 

16.  Savings  banks. 

17.  Weights  and  measures. 

18.  Bills  of  exchange  and  promissory  notes. 

19.  Interest. 

20.  Legal  tender. 

21.  Bankruptcy  and  insolvency. 

22.  Patents  of  invention  and  discovery. 

23.  Copyrights. 

-    24.  Indians  and  lands  reserved  for  the  Indians. 

25.  Naturalization  and  aliens. 

26.  Marriage  and  divorce. 

27.  The  criminal  law,  except  the  constitution  of  the  courts 
of  criminal  jurisdiction,  but  including  the  procedure  in  crimi- 
nal matters. 

28.  The  establishment,  maintenance,  and  management  of 
penitentiaries. 

29.  Such  classes  of  subjects  as  are  expressly  excepted  in  the 
enumeration  of  the  classes  of  subjects  by  this  act  assigned 
exclusively  to  the  legislatui*es  of  the  provinces." 


603] 


Federal  Oovemment  in  Canada. 


4t 


And  the  section  concludes,  with  the  view  obviously  '^{  giv- 
ing more  definiteness  to  its  provisions  and  to  lessen  the 
chances  of  conflicts  of  jurisdiction  with  the  provincial  authori- 
ties, that  "any  matter  coming  within  any  of  the  classes  of 
subjects  enumerated  in  this  section  shall  not  be  deemed  to  come 
within  the  class  of  matters  of  a  local  or  private  nature  com- 
prised in  the  enumeration  of  the  classes  of  subjects  by  this  act 
assigned  exclusively  to  the  legislatures  of  the  provinces." 

Having,  as  they  believed,  definitely  stated  the  general  powers 
that  appertain  naturally  to  a  central  government,  exe.  jising 
jurisdiction  over  the  whole  Dominion,  the  framers  of  the  Act 
defined  in  the  ninety-second  section  the  powei*s  that  the  local 
governments  can  exercise  within  their  constitutional  limits.  * 

The  legislature  may,  in  each  province,  "  exclusively  make 
laws "  in  relation  to  the  classes  of  subjects  enumerated  as 
follows : 

1.  The  amendment,  from  time  to  time,  notwithstanding 
anything  in  this  act,  of  the  constitution  of  the  province,  except 
as  regards  the  office  of  lieutenant-governor. 

2.  Direct  taxation  within  the  province  in  order  to  the  rais- 
ing of  a  revenue  for  provincial  purposes. 

3.  The  borrowing  of  money  on  the  sole  credit  of  the 
province. 

4.  The  establishment  and  tenure  of  provincial  offices,  and 
the  appointment  and  payment  of  provincial  officers. 

5.  The  management  and  sale  of  the  public  lands  belonging 
to  the  province,  and  of  the  timber  and  wood  thereon. 

6.  The  establishment,  maintenance  and  management  of 
public  and  reformatory  prisons  in  and  for  the  province. 

7.  The  establishment,  maintenance  and  managemient  of  hos- 
pitals, asylums,  charities  and  eleemosynary  institutions  in  and 
for  the  province,  other  than  marine  hospitals. 

8.  Municipal  institutions  in  the  province. 

9.  Shop,  saloon,  tavern,  and  auctioneer  and  other  licenses, 
in  order  to  the  raising  of  a  revenue  for  provincial,  local  or 
municipal  purposes. 


48 


Federal  Government  in  Chnada, 


[504 


.•1 


10.  liocal  works  and  undertakings  other  than  such  as  are  of 
the  following  classes : 

a.  Lines  of  steam  or  other  8lii|>8,  railways,  canals,  tele- 
graphs and  other  works  and  undertakings  connecting  the 
province  with  any  other  or  others  of  the  provinces,  or  extending 
beyond  the  limits  of  the  province; 

6.  Lines  of  steamships  between  the  province  and  any  British 
or  foreign  country ; 

0.  Such  works  as,  although  wholly  situate  within  the  prov- 
ince, are  before  or  after  their  execution  declared  by  the 
parliament  of  Canada  to  be  for  the  general  advantage  of 
Canada,  or  for  the  advantage  of  two  or  more  of  the 
provinces.* 

11.  The  incorporation  of  companies  with  provincial  objects. 

12.  Solemnization  of  marriage  in  the  province. 

13.  Property  and  civil  rights  in  the  province. 

14.  The  administration  of  justice  in  the  province,  including 
the  constitution,  maintenance  and  organization  of  provincial 
courts,  both  of  civil  and  of  criminal  jurisdiction,  and  including 
procedure  in  civil  matters  in  those  courts. 

15.  The  imposition  of  punishment  by  fine,  penalty  or 
imprisonment  for  enforcing  any  law  of  the  province  made  in 
relation  to  any  matter  coming  within  any  of  the  classes  of 
subjects  enumerated  in  this  section. 

16.  Generally  all  matters  of  a  merely  local  or  private  nature 
in  the  province. 

A  careful  consideration  of  the  foregoing  section  will  show 
how  large  and  important  a  measure  of  local  self-government 
is  given  to  all  the  provincial  members  of  the  confederation. 
It  was  the  object  of  the  framcrs  of  the  constitution  to  leave  to 

'  In  1883  Ihe  parliament  of  Canada  passed  an  act  declaring  certain  rail- 
ways to  be  "works  for  the  general  advantage  of  Canada"  within  the 
meaning  of  the  section.  (See  Bourinot's  Parliamentary  Practice  in  Can- 
ada, pp.  687-589).  This  subject  was  ably  argued  before  the  Supreme 
Court  of  Canada  in  1888.  See  Hon.  Mr.  Blake's  argument  in  the  Manitoba 
case. 


606] 


Federal  Oovemment  in  Canada, 


4« 


the  old  provinces  as  many  of  those  powers  and  privileges  that 
they  exercised  before  the  confederation,  as  are  necessary  to  the 
efficient  working  of  a  local  government  and  at  the  same  time 
to  give  the  central  power  effective  control  over  all  matters 
which  give  unity  and  permanency  to  the  whole  federal  organi- 
zation, of  which  the  provincial  entities  form  political  parts 
or  divisions.  It  will  be  seen,  however,  that  the  all  important 
question  of  education  does  not  fall  within  the  enumeration  of 
matters  belonging  to  provincial  legislation,  which  I  have  just 
given,  although  it  is  above  all  others  a  subject  of  local  or 
provincial  interest.  The  reason  for  this  must  be  sought  in  the 
political  history  of  the  question. 

While  the  different  provinces  before  confederation  were 
perfecting  their  respective  systems  of  education,  the  question 
of  separate  schools  attained  a  great  prominence.  Tiie  Protes- 
tant minority  in  Lower  Canada,  and  the  Roman  Catholic 
minority  in  Upper  Canada,  earnestly  contended  for  such  a 
separation  as  would  give  the  Protestants,  in  the  former,  and 
the  Roman  Catholics,  in  the  latter  province,  control  of  their 
own  schools,  and  not  oblige  the  children  of  the  two  distinct 
religious  beliefs  to  mix  tc^ther.  The  religious  instruction 
which  the  Roman  Catholics  consider  inseparable  from  any 
public  school  system  could  not  be  accepted  by  the  Protestants. 
Non-sectarian  schools  are  at  direct  variance  with  the  principle^ 
of  the  Roman  Catholic  Church.  Finally,  in  all  the  provinces, 
except  New  Brunswick  and  Prince  £dward  Island,  separate 
schools  obtained  at  the  time  of  the  union,  and  it  accordingly 
became  necessary  to  give  the  minorities  guarantees  for  their 
continuance,  as  far  as  such  could  be  given  in  the  constitution. 
The  British  North  America  Act  now  provides  that  while  the 
legislature  of  a  province  may  exclusively  make  laws  on  the 
subject  of  education,  nothing  therein  shall  prejudicially  affect 
any  of  the  denominational  schools  in  existence  before  July, 
1867.  An  appeal  lies  to  the  governor-general  in  council  from 
any  jt  of  the  provincial  authority  affecting  any  legal  right 
or  privilege  that  the  Protestant  or  Roman  Catholic  minority 


50 


Federal  Oovemment  in  Canada. 


[506 


enjoyed  at  the  time  of  the  union.  In  case  the  provincial 
authorities  refuse  to  act  for  the  due  protection  of  the  rights 
of  minorities,  in  accordance  with  the  provisions  of  the  consti- 
tution, then  the  parliament  of  Canada  may  provide  a  remedy 
for  the  due  execution  of  the  law  provided  in  this  behalf.^ 
Parliament,  so  far,  has  not  been  called  upon  to  act  on  the  pro- 
visions of  this  section.  The  questions  that  arose  in  1872  and 
in  subsequent  years,  with  respect  to  the  New  Brunswick  school 
act  of  1871,  providing  for  a  compulsory  rating  and  assessment 
for  non-sectarian  schools,  did  not  come  under  the  law,  for  the 
Roman  Catholics  of  New  Brunswick  did  not  enjoy  separate 
privileges  from  other  classes  of  their  fellow-citizens  previous 
to  confederation ;  and  all  the  authorities  of  the  Dominion,  as 
well  as  of  England,  the  minister  of  justice  of  Canada,  the 


(2.) 


(3.) 


*  6.  N.  A.  Act,  1867,  sec.  93.  In  and  for  each  province  the  legislature 
may  exclusively  make  laws  in  relation  to  education,  subject  and  according 
to  the  following  provisions :  — 

(1.)  Nothing  in  any  such  law  shall  prejudicially  affect  any  right  or  pri- 
vilege with  respect  to  denominational  schools  which  any  class  of 
persons  have  by  law  in  the  province  at  the  union ; 
AH  the  powers,  privileges  and  duties  at  the  union  by  law  conferred 
and  imposed  in  Upper  Canada  on  the  separate  schools  and  school 
trustees  of  the  Queen's  Boman  Catholic  subjects,  shall  be  and  the 
same  are  hereby  extended  to  the  dissentient  schools  of  the  Queen's 
Protestant  and  Boman  Catholic  subjects  in  Quebec ; 
Where  in  any  province  a  system  of  separate  or  dissentient  schools 
exists  by  law  at  the  union,  or  is  thereafter  established  by  the  legis- 
lature of  the  province,  an  appeal  shall  lie  to  the  governor-general 
in  cou  "'I  from  any  act  or  decision  of  any  provincial  authority 
affec'  right  or  privilege  of  the  Protestant  or  Boman  Catho- 

'''  ^  of  the  Queen's  subjects  in  relation  to  education ; 

.  any  such  provincial  law  as  from  time  to  time  seems  to  the 
jrnor-general  in  council  requisite  for  the  due  execution  of  the 
provisions  of  this  section  is  not  made,  or  in  case  any  decision  of  the 
governor-general  in  council  on  any  appeal  under  thi''  section  is  not 
duly  executed  by  the  proper  provincial  authority  in  that  behalf, 
then  and  in  every  such  case,  and  as  far  only  as  the  circumstances  of 
each  case  require,  the  parliament  of  Canada  may  make  remedial 
laws  for  the  due  execution  of  the  provisions  of  this  section,  and  of 
any  decision  of  the  governor-general  in  council  under  this  section. 


(4. 


507] 


Federal  Government  in  Canada, 


51 


courts,  and  the  colonial  secretary  of  state,  and  the  judicial 
committee  of  the  privy  council,  concurred  in  the  opinion  that 
the  legislature  had  a  right  to  enforce  the  assessments  objected 
to  by  the  Roman  Catholics  of  the  province,  and  had  acted 
legally  within  the  powers  conferred  upon  them  by  the  act  of 
confederation.^ 

The  Dominion  and  Local  governments  also  exercise  cer- 
tain rights  in  common.  Among  the  subjects  on  which  they 
have  concurrent  powers  of  legislation  are  agriculture  and 
immigration.'  The  dominion  parliament  may  make  laws  on 
these  subjects  for  any  and  all  of  the  provinces,  and  each  legis- 
lature may  do  the  same  for  the  province  over  which  it  has 
jurisdiction,  provided  no  provincial  act  is  repugnant  to  any 
dominion  act.  These  provisions  have  so  far  worked  in  the 
interests  of  the  provinces  separately  and  of  the  dominion  as  a 
whole.  Both  these  authorities  are  equally  interested  in  the 
promotion  of  matters  so  deeply  affecting  the  development  of 
the  natural  resources  of  all  sections.  The  provinces,  excepting 
Manitoba,  have  the  control  of  their  lands  and  mines,  while 
the  dominion  is  interested  in  the  opening  up  of  the  vast  terri- 
torial area  which  it  has  in  the  north-west ;  and  it  is  conse- 
quently clear  that  these  concurrent  powers  are  wisely  arranj::.:^ 
in  the  constitutional  act. 

If  we  study  the  t'vo  sections,  enumerating  the  respective 
powers  that  fall  within  the  jurisdiction  o^^  the  dominion  par- 
liament and  the  provincial  legislatures,  we  shall  see  that  there 
are  certain  subjects,  which  may,  as  the  operation  of  the  act 


*  For  history  of  this  case  see  Todd's  Pari.  Govt,  in  Cblonies,  pp.  346-862. 

'  B.  N.  A.  Act,  1867,  sec.  96.  In  each  province  the  legislature  may  make 
laws  in  relation  to  agriculture  in  the  province,  and  to  immigration  into  the 
province;  and  it  is  hereby  declared  that  the  parliament  df  Canada  may 
from  time  to  time  make  laws  in  relation  to  agriculture  in  all  or  any  of  the 
provinces,  and  to  immigration  into  all  or  any  of  the  provinces ;  and  any  law 
of  the  legislature  of  a  province,  relative  to  agriculture  or  to  immigration, 
shall  have  effect  in  and  for  the  province,  as  long  and  as  far  only  as  it  is  not 
repugnant  to  any  act  of  the  parliament  of  Canada. 


62 


Federal  Oovemmeni  in  Canada^ 


[608 


il  ;r 


proves,  fall,  under  certain  limitations,  within  the  province  of 
both.  For  instance,  there  is  insurance,  on  which  both  the 
dominion  government  and  provincial  authorities  have  fully 
legislated — the  former  under  the .  general  provision  giving  it 
the  jurisdiction  over  "  the  regulation  of  trade  and  commerce;" 
the  latter  under  the  very  wide  ■  ;ght  to  incorporate  companies 
"  with  provincial  objects."  The  question  of  jurisdiction  has 
been  decided  by  the  courts  of  Canada,  and  affirmed  by  the 
privy  council,  and  principles  laid  down  of  much  impoi*tance 
since  they  serve  to  prevent  conflict  of  authority  on  other  sub- 
jects and  give  each  jurisdiction  that  power  which  it  should 
exercise  in  accord  with  the  general  spirit  of  the  constitution. 
It  is  now  authoritatively  decided  that  the  terms  of  the  eleventh 
paragraph  of  the  ninety-second  section  are  sufficiently  com- 
prehensive to  include  insurance  companies,  whose  object  is  to 
transact  business  within  provincial  limits. 

If  a  company  desires  to  carry  on  operations  outside  of  the 
province  it  will  come  under  the  provisions  of  the  general  fed- 
eral law,  to  which  it  must  conform  and  which  contains  special 
provisions  for  such  purposes.  But  the  authority  of  the 
dominion  parliament  to  legislate  for  the  regulation  of  trade 
and  commerce  does  not  comprehend  the  power  to  regulate  by 
legislation  the  contracts  of  a  particular  business  or  trade,  such 
as  the  business  of  fire  insurance  in  a  single  province.  There- 
fore while  the  dominion  parliament  may  give  power  to 
contract  for  insurance  against  loss  or  damage  by  fire,  the  form 
of  the  contiact  and  the  rights  of  the  parties  thereunder,  must 
depend  upon  the  laws  of  the  country  or  province  in  which  the 
business  is  done.^ 

Although  the  Dominion  parliament  has  exclusive  jurisdic- 
tion over  the  criminal  law,  the  local  legislatures  must  necessa- 
rily have  it  within  their  power,  as  provided  for  in  the  act,  to 


>  See  Ctrtwright's  caaes  on  B.  N.  A.  Act,  vol.  I.,  pp.  265-350;  4  App.  Rep. 
O  irio,  96, 103 ;  43  U.  C.  Q.  B.  261,  271 ;  Sup.  Court  R.,  vol.  IV.,  pp.  215- 
S.rf;45  L.  T.N.  S.,  721. 


509] 


Federal  Government  in  Canada. 


53 


impose  punishment  by  fine,  penalty  or  imprisonment,  for 
enforcing  any  law  of  the  province  within  its  legislative 
authority.  The  legislature  may  add  "  hard  labor  "  to  confine- 
ment or  restraint  in  prison  in  legislating  on  a  subject  within  its 
jurisdiction.  Such  a  power  is  not  in  conflict  with  the  authority 
of  the  dominion  parliament  over  criminal  matters.^  This 
seems  a  necessary  incident  to  a  legislative  power.  It  is  a  prin- 
ciple which  parliament  itself  applies  with  respect  to  civil  rights 
over  which  the  legislatures  have  exclusive  jurisdiction.  All 
the  legislative  authorities  must  act,  however,  within  their 
constitutional  spheres,  and  not  push  their  pretentions  to 
extremes.  As  in  the  insurance  .case  just  mentioned,  powers 
should  be  sought  from  each  legislative  body  within  its  v^nsli- 
tutional  limits.  .Nor  should  parliament  interfere  with  such 
details  of  an  organization  as  are  wholly  within  the  jurisdiction 
of  a  provincial  sovereignty.' 

It  must  necessarily  happen  in  the  operation  of  a  written 
constitution  like  ours  thjsA  conflicts  of  jurisdiction  will  arise  in 
cases  where  the  respective  powers  of  the  distinct  legislative 
authorities  are  not  sufficiently  defined.  Sometimes  it  is  diffi- 
cult, while  the  constitution  is  working  itself  out,  to  decide 
wliere  the  jurisdiction  rightly  lies.  The  difficulty  that  may 
arise  in  such  cases  can  be  seen  by  reference  to  the  decisions  of 
the  Canadian  courts  and  of  the  judicial  committee  of  the  privy 
council  on  questions  affecting  the  traffic  in  intoxicating  liquors. 
The  privy  council  has  decided  that  the  Canada  temperance  act 
of  1878  which,  in  effect,  authorizes  the  inhabitants  of  each 
town,  parish  or  county  to  prohibit  or  to  regulate  the  sale  of 
liquor,  and  to  direct  for  whom,  or  for  what  purposes,  and  under 
what  conditions,  spirituous  liquors  may  be  sold  therein,  does 
not  deal  with  matters  of  a  purely  local  nature,  nor  with  prop- 
erty nor  civil  rights,  nor  with  the  raising  of  a  revenue  for  pro- 


I  Bee  Hodge  va.  the  Queen,  9  App.  Cu.,  117. 

*  Beniarks  of  Sir  John  A.  Maodonald,  Mr.  Blake  and  others,  Can.  Han- 
sard, 1883,  pp.  499,  500. 


54 


Federal  Government  in  Canada, 


[510 


mi 


J.' 

ni  J: 

Ki 


vincial,  local  or  municipal  purposes,  as  assigned  exclusively  to 
the  jurisdiction  of  the  provincial  legislatures ;  but  is  rather 
one  of  those  subjects  relating  to  public  order  and  safety  which 
fall  within  the  general  authority  of  parliament  to  make  laws 
for  "the  order  and  good  goverufnent"  of  Canada.  On  th^i 
other  hand,  the  same  body  has  decided  that  it  is  competent  for 
a  legislature  of  a  province  to  pass  an  act  regulating  the  issue 
of  licenses  for  the  sale,  of  liquor  in  the  municipalities  of  a 
province,  and  authorizing  the  appointment  of  commissioners 
to  define,  by  resolutions,  the  conditions  and  qualifications  re- 
quired to  obtain  licenses.  This  learned  body  has  pointed  out 
that  the  powers  of  such  a  provincial  act  are  confined  in  its 
operations  to  municipalities  iu  a  province,  and  entirely  local 
in  its  character,  and  in  fact  identical  for  the  most  part  with 
the  powers  that  belonged  to  municipal  institutions  under  the 
laws  that  had  been  passed  by  the  legislatures  previous  to  con- 
federation. In  short,  such  an  act  was  considered,  by  their 
Lordships,  as  in  the  nature  of  police  anjJ  municipal  regulations, 
calculated  to  preserve  in  the  municipality  peace  and  public 
decency,  to  repress  drunkenness  and  disorderly  and  riotous 
conduct.^  These  decisions,  to  a  certain  extent,  dealing  as  they 
do  with  cognate  subjects,  will  perplex  the  ordinary  lay  mind 
not  accustomed  to  legal  subtilties;  and  there  are  those  who 
say^  that  in  the  first  decision  their  Lordships  had  not  the  ben- 
efit of  a  very  complete  argument  in  favor  of  the  contention 


i:  I -i 


i  I'M 


*  See  7  App.  Caa.,  829 :  Legal  News,  January  19th,  1884. 

'The  late  Mr.  Justice  Henry,  one  of  the  authors  of  the  confederati  j,  in 
a  judgment  on  a  cognate  question,  reiterated  the  opinion  he  had  expressed 
on  the  Canada  Temperance  act,  that  the  British  North  America  act,  "if 
read  in  the  light  which  a  knowledge  of  the  subject  before  the  passage 
of  that  act  would  produce,  plainly  gives  the  {lower  of  legislation  to  the 
local  legislatures  in  respect  of  licenses."  His  whole  argument  went  to  show 
"  the  right  to  make  laws  for  the  peace,  &c.,  of  Canada  is  as  fully  restricted 
to  such  subjects  as  do  not  come  within  the  classes  of  subjects  assigned  to  the 
legislatures  of  the  provinces  as  language  can  make  it ;"  and  that  the  privy 
council  did  not  give  due  consideration  to  the  power  of  the  legislatures 
over  those  special  subjects.    Sup.  Court  B.,  vol.  XI.,  pp.  3S-39. 


611] 


Federal  Oovemment  in  Canada, 


55 


for  local  jurisdiction,  and  hardly  well  appreciated  the  full 
weight  that  should  be  given  to  the  paragraph  giving  the  prov- 
inces complete  jurisdiction  over  all  matters  of  a  merely  local 
or  private  nature  in  a  province.  At  all  events,  the  second 
decision  has  recommended  itself  as  in  harmony  with  the  gen- 
eral spirit  of  local  powers  granted  to  the  provincial  legisla- 
tures. As  it  was,  the  immediate  effect  of  these  decisions,  in  a 
measure  involving  contradictions,  was  to  throw  the  liquor- 
licensing  legislation  of  the  country  into  much  confusion ;  for 
the  Dominion  government  considered  itself  justified  in  passing 
a  general  license  act,  which  subsequently  was  declared  ultra 
vires,  except  where  the  act  dealt  with  wholesale  and  vessel 
licenses,  or  carried  into  effect  certain  provisions  of  the  Canada 
Temperance  act.^ 

The  conclusion  we  come  to  after  studying  the  operation  of 
the  constitutional  act,  until  the  present  time,  is  that  while  its 
framers  endeavored  to  set  forth  more  definitely  the  respective 
powers  of  the  central  and  local  authorities  than  is  the  case  with 
the  constitution  of  the  United  States,  it  is  not  likely  to  be  any 
more  successful  in  preventing  controversies  constantly  arising 
on  points  of  legislative  jurisdiction.  The  American  constitu- 
tion is  remarkable  for  its  precision,  the  generality  of  its 
principles,  the  avoidance  of  too  many  details,  and  the  elasticity 
of  which  it  is  capable  when  applied  to  the  needs  and  exigencies 
of  the  nation  and  states.  The  effort  was  made  in  the  case  of 
the  Canadian  constitution  to  go  in  the  other  direction,  and 
more  fully  define  the  limits  of  the  authority  of  the  dominion 
and  its  political  parts ;  but  while  great  care  was  evidently  taken 
to  prevent  the  dangerous  assertion  of  provincial  rights,  it  is 
clear  that  it  has  the  imperfections  of  all  statutes,  when  it  is 
attempted  to  meet  all  emergencies.  Happily,  however,  by 
means  of  the  courts  in  Canada,  and  the  tribunal  of  last  resort 
in  England,  and  the  calm  deliberation  which  the  parliament  is 


*  See  Bonrinot's  Manual  of  Constitutional  History,  pp.  139-146. 


"m 


56 


Federal  Government  in  Canada, 


[512 


■Hi 


il 


•I' 

:  'II 


■1! 
1  V 


it:il! 

k 
J;!ii 


1 

i 

!fjj 

nil 


I 
I 


learning  to  give  to  all  questions  of  dubious  jurisdiction,  the 
principles  on  which  the  federal  system  should  be  worked  are, 
year  by  year,  better  understood  and  the  dangers  of  continuous 
conflict  lessened.  It  is  inevitable,  if  we  are  to  judge  from  the 
working  of  a  federal  system  in  tlie  United  States,  that  tliere 
should  be,  at  times,  a  tendency  either  to  push  to  extremes  the 
doctrine  of  the  subordination  of  the  provinces  to  the  central 
power,  or  on  the  other  hand  to  claim  powers  on  behalf  of  the 
provincial  organizations,  hardly  compatible  with  their  position 
as  members  of  a  confederation  based  on  the  principle  of  giving 
complete  jurisdiction  to  the  central  government  over  ail  mat- 
ters of  national  and  general  import.  It  is  obvious  that  in 
certain  legislation  the  Dominion  parliament  must  trench  upon 
some  of  the  powers  exclusively  given  to  the  local  organiza- 
tions, but  it  cannot  be  argued,  with  a  due  regard  to  the  true 
framework  of  the  constitutional  act  and  the  principles  that 
should  govOTn  a  federal  system  like  ours,  that  the  powers  of 
the  provinces  should  be  absorbed  by  the  dominion  or  central 
authority  in  cases  of  su(^  apparent  conflict.  Referring  to  this 
point  the  privy  council  calls  attention  to  the  fact  that  the  gen- 
eral subject  of  "marriage  and  divorce"  n  given  to  the 
jurisdiction  of  the  dominion  parliament,  anu  the  "  solemni- 
zation of  marriage"  to  the  legislature  of  a  province.  It  is 
evident  that  tlie  solemnization  of  marriage  would  come  within 
the  general  description  of  the  subject  first  mentioned ;  yet  no 
one  can  doubt,  notwithstanding  the  general  language  of  the 
ninety-first  section,  that  this  subject  is  still  within  the  exclu- 
sive authority  of  the  l^islatutes  of  the  provinces.  "So," 
continues  the  privy  council,  "the  raising  of  money  by  any 
mode  or  system  of  taxation  is  enumerated  among  the  classes  of 
subject  in  section  ninety-one,  but  though  the  description  is 
sufficiently  large  and  general  to  include  direct  taxation  within 
the  province  in  order  to  aid  the  raising  of  a  revenue  for  pro- 
vincial purposes  assigned  to  the  provincial  legislatures  by  the 
ninety-second  section  it  obviously  could  not  have  been  intended 


613] 


Federal  Oovemment  in  Canada, 


67 


that  in  this  instance  also  the  general  power  should  override 
the  particular  one."  ^ 

It  is  now  laid  down  by  the  highest  judicial  authorities  that 
the  dominion  parliament  has  the  right  to  interfere  with 
"  property  and  civil  rights  "  in  so  far  as  such  interference  may 
be  absolutely  necessary  for  the  purjxjse  of  legislating  generally 
and  effectually  in  relation  to  matters  confided  to  the  parliament 
of  Canada.  Laws  designed  for  the  promotion  of  public  order, 
safety  or  morals,  and  which  subject  those  who  contravene  them 
to  criminal  procedure  and  punishment,  belong  to  the  subject  of 
public  wrongs  rather  than  to  that  of  civil  rights.  T'  ey  are 
of  a  nature  which  fall  within  the  general  authority  of  parlia- 
ment, to  make  laws  for  the  good  order  and  government  of 
Canada,  and  have  direct  relation  to  criminal  law,  which  is  one 
of  the  enumerated  classes  of  subjects  assigned  exclusively  to 
the  parliament  of  Canada.  Few  if  any  laws  could  be  made  by 
the  parliament  for  the  peace,  order  and  good  government  of 
Canada  which  might  not,  in  some  incidental  way,  affect  pro- 
perty and  civil  rights ;  and  it  could  not  have  been  intended 
when  assuring  to  the  provinces  exclusive  legislative  authority 
on  the  subject  of  property  and  civil  rights,  to  exclude  the  par- 
liament from  the  exercise  of  this  general  power  whenever  any 
such  incidental  interference  would  result  from  it.*  As  on  the 
one  hand  the  federal  parliament  cannot  extend  its  own 
jurisdiction  by  a  territorial  extension  of  its  laws,  and  legislate 
on  subjects  constitutionally  provincial,  by  enacting  them  for 
the  whole  dominion ;  so,  on  the  other  hand,  a  provincial  legisla- 
ture cannot  extend  its  jurisdiction  over  matters  constitutionally 
federal,  by  a  territorial  limitation  of  its  laws  and  legislate  on 
matters  left  to  the  federal  power,  by  enacting  them  for  the 
province  only,  as  for  instance,  incorporate  a  bank  for  the 
province.' 


»L.  T.  N.  S.,  721 :  Cartwright,  vol.  I.,  pp.  272,  273. 

n  App.  Cas.,  829. 

•Can.  Sup.  Court  R,  IV.,  310. 

6 


68 


Federal  Government  in  Canada. 


[514 


It 


If  ^:  ill 

m 


m 


When  the  British  North  America  Act  enacted  that  there 
should  be  a  legislature  for  a  province,  and  that  it  should  have 
exclusive  authority  to  make  laws  for  the  provinces  and  for 
provincial  purposes  in  relation  to  the  matters  enumerated  in 
the  ninety-second  section,  it  conferred  powers  not  in  any  sense 
to  be  exercised  by  delegation  from,  or  as  agents  of,  the  impe- 
rial parliament,  but  authority  as  plenary  and  as  ample  within 
the  limits  prescribed  by  the  section,  as  the  imperial  parliament, 
in  the  plenitude  of  its  power,  possesses  and  could  bestow.* 

In  short,  each  legislative  body  should  act  within  the  legiti- 
mate sphere  of  its  clearly  defined  powers,  and  the  dominion 
parliament  should  no  more  extend  the  limits  of  its  jurisdic- 
tion, by  the  generality  of  the  application  of  its  law,  than  a 
local  legislature  should  extend  its  jurisdiction  by  localizing 
the  application  of  its  statutes.^ 

I  might  cite  other  opinions  bearing  on  the  same  important 
question,  but  I  have  already  given  enough  to  show  the  prin- 
ciples that  should  generally  prevail  if  the  federal  constitution 
is  to  be  efficiently  carried  out  with  a  true  consideration  of  all 
the  interests  involved.'  The  federal  government  should  work 
in  harmony  with  provincial  institutions,  and  by  leaving  them 
full  scope  within  the  limits  of  the  constitution  at  once  give 
strength  and  stability  to  the  central  government  and  confidence 
to  the  various  local  organizations  without  which  it  could  not 
exist. 

In  one  most  important  respect  the  dominion  government 
exercises  a  direct  control  over  the  legislation  of  each  province. 
While  the  imperial  government  can  disallow  any  act  of  the 


» 9  App.  Cas.,  117 ;  Cartwright,  vol.  III.,  p.  162. 

The  same  power  exists  in  the  States.  "  When  a  particular  power,"  says 
Judge  Coolej,  "  is  found  to  belong  to  the  States,  they  are  entitled  to  the 
same  complete  independence  in  its  exercise  as  the  national  government  in 
wielding  its  own  authority." 

*  Legal  News  (the  late  Mr.  Justice  Ramsay)  on  Hodge  vs.  the  Queen, 
January  26th,  1884. 

'  See  Bourinot's  Manual  of  Constitutional  History,  chap.  xiy. 


515] 


Federal  OoverriTnent  in  Canada, 


59 


CaDadian  parliament  at  variance  with  the  interests  of  the 
Empire,  the  governor  in  council  can,  within  one  year  from 
its  receipt,  disallow  any  act  of  a  provincial  legislature. 
Here  is  one  of  the  evidences  which  the  constitution  affords 
of  the  subordinate  position  in  certain  particulars  of  the  pro- 
vincial authorities.  It  illustrates  the  fact  that  the  dominion 
government  now  occupies  those  relations  towards  the  provin- 
cial governments  that  England,  before  the  confederation,  held 
with  reference  to  the  provinces,  and  still  does  in  the  case  of 
all  colonies  outside  of  Canada.  This  power  of  disallowance 
is  not  limited  in  terms  by  the  British  North  America  Act,* 
but  may  be  exercised  even  with  respect  to  an  act  clearly  within 
the  constitutional  jurisdiction  of  the  provincial  legislatures. 
It  has  so  far  been  exercised  in  a  very  insignificant  number  of 
cases,  compared  with  the  vast  amount  of  legislation  that  annu- 
ally passes  the  provincial  bodies ;  but  in  some  of  these  cases  it 
caused  much  irritation,  notably  in  Manitoba,  whose  provincial 
railway  acts  were  vetoed  on  several  occasions  on  the  ground 
that  they  were  in  conflict  with  obligations  that  the  dominion  had 
assumed  towards  the  Canadian  Pacific  Railway.  These 
restrictions  were  only  removed  after  parliament  had  given  the 
Pacific  railway  certain  privileges  as  compensation  for  the 
removal  of  their  railway  monopoly  in  the  north-west.  From 
these  and  other  instances  of  the  exercise  of  this  political  power, 
the  student  will  see  that  it  is  one  to  be  exercised  with  great 
discretion  and  judgment,  as  otherwise  it  may  involve  conse- 


>  Sec.  90.  The  following  provisions  of  this  act  respecting  the  parliament 
of  Canada,  namely, — the  provisions  relating  to  appropriation  and  tax  bills, 
the  recommendation  of  money  votes,  the  assent  to  bills,  the  disallowance 
of  acts  and  the  signification  of  pleasure  on  bills  reserved, — shall  extend 
and  apply  to  the  legislatures  of  the  several  provinces  as  if  those  provisions 
were  here  re-enacted  and  made  applicable  in  terms  to  the  respective  pro- 
vinces and  the  legislatures  thereof,  with  the  substitution  of  the  lieutenant- 
governor  of  the  province  for  the  governor-general,  of  the  governor-general 
for  the  Queen„  and  for  a  secretary  of  state,  of  one  year  for  two  years,  and  of 
the  province  for  Canada. 


60 


Federal  Govenimenl  in  Canada, 


[516 


Ml 


1  •(  ?, 


S|l 


m 


*:4^ 


quences  fatal  to  the  harmony  and  integrity  of  the  confedera- 
tion. Thi8  power  can  be  properly  exercised  when  the  act 
under  consideration  is  beyond  the  constitutional  competency  of 
the  legislature,  or  when  it  is  repugnant  to  dominion  legislation 
in  cases  where  there  is  concurrent  jurisdiction,  or  when  it  is 
hostile  to  the  rights  enjoyed  by  a  minority  under  the  constitu- 
tion, or  when  clearly  hostile  or  dangerous  to  the  peace  and 
unity  of  the  dominion  generally.  Before  advising  the  gover- 
nor-general on  an  act  of  dubious  import,  or  only  partially 
defective,  the  council  must  consider  whether  it  will  not  be 
sufficient  to  inform  the  legislative  body,  responsible  for  its 
passage,  of  the  objectionable  features,  and  allow  it  to  go  into 
operation  on  the  understanding  that  they  will  be  removed  by 
an  amending  act.  Or  in  cases  where  the  act  is  useful,  though 
ultra  vireSf  the  government  has  recommended  confirmatory 
legislation  by  the  dominion  parliament,  or  in  matters  of  doubt 
they  have  been  left  to  the  courts  to  decide  whenever  a  question 
should  arise  for  their  determination.  The  cases  are  so 
numerous  when  the  dominion  government  is  called  upon  to 
exercise  its  power  of  allowance  or  disallowance,  that  it  is  out 
of  the  question  that  I  should  here  attempt  to  lay  down  with 
any  accuracy,  the  various  reasons  and  principles  that  should 
guide  it  in  this  important  work  of  supervision.  The  danger 
arises  from  the  exercise  of  the  power,  on  the  grounds  of  public 
policy,  in  the  case  of  a  question  clearly  within  the  constitu- 
tional powers  of  a  legislature.  The  principle  that  should 
prevail,  as  a  rule,  is  to  leave  to  their  operation  all  acts  that 
fall  within  the  powers  of  the  provincial  legislature,  which 
within  its  legal  sphere  has  as  absolute  a  right  of  legislation  as 
the  dominion  parliament  itself;  and  if  the  dominion  authori- 
ties, at  any  time,  for  sufficient  reasons,  consider  it  necessary  to 
interfere  in  provincial  affiiirs,  they  must  be  prepared  to  justify 
their  action  before  parliament  and  the  country,  so  deeply  inter- 
ested in  the  preservation  of  the  union.  Opinion  is  divided  as 
to  the  wisdom  of  a  provision  which  gives  so  sovereign  a 
power  to  a  political  body,  and  it  may  be  doubted  if  in  this 


517] 


Federal  Oovemmeni  in  Canada. 


61 


respect  our  constitution  is  an  improvement  upon  that  of  the 
United  States.  The  veto  is  so  much  valued  in  the  states  that 
while  originally  only  one  state,  Massachusetts,  vested  it  in  the 
governor,  now  all  but  four  have  it.  The  President  vetoes  the 
acts  of  Congress,  which  can,  however,  override  his  decision  by 
a  two-thirds  vot«  in  each  house ;  and  the  governors  in  each 
state,  as  just  remarked,  exercise  the  same  power  with  respect 
to  state  legislation.  But  the  disallowance  of'  state  legislation 
by  the  executive  at  Washington,  has  never  existed,  and  was 
never  suggested  in  the  case  of  the  American  federal  system.^ 

The  adoption  of  such  a  principle  in  1787  would  have  been, 
in  all  probability,  fatal  to  the  passage  of  the  constitution  of  the 
states,  many  of  whom  agreed  to  that  measure  with  doubt  and 
suspicion.  They  agreed,  wisely,  as  experience  seems  to  show, 
to  leave  the  judicial  branch  of  the  constitution  to  determine 
the  constitutionality  of  all  acts  of  congress  or  of  the  legislature. 

Political  considerations  cannot  enter  into  this  judicial 
determination.  As  long  as  a  statute  is  within  the  constitu- 
tional jurisdiction  of  a  body  that  passed  it,  the  federal  judiciary 
cannot  do  otherwise  than  so  declare,  even  if  it  be  objectionable 
at  the  time  on  grounds  of  public  policy.  The  future  will 
soon  prove  whether  this  extraordinary  supervision,  given  to 
the  dominion  over  the  provinces,  is  calculated  to  strengthen 


'  "  While  the  constitution  was  being  framed  the  suggestion  was  made,  and 
for  a  time  seemed  likely  tu  be  adopted,  that  a  veto  on  acts  of  state  legisla- 
tures should  be  conferred  upon  the  federal  congress.  Discussion  revealed 
the  objections  to  such  a  plan.  Its  introduction  would  have  offended  the 
sentiment  of  the  states,  always  jealous  of  their  autonomy ;  its  exercise  would 
have  provoked  collisions  with  them.  The  disallowance  of  a  state  statute, 
even  if  it  did  really  offend  against  the  federal  constitution,  would  have 

seemed  a  political  move,  to  be  resented  by  a  political  counter-move 

But  by  the  action  of  the  courts  the  self-love  of  the  states  is  not  wounded, 
and  the  decision  annulling  their  laws  is  nothing  but  a  tribute  to  the 
superior  authority  of  the  supreme  enactment  to  which  they  were  themselves 
parties,  and  which  they  may  themselves  desire  to  see  enforced  against  some 
other  state  on  some  not  remote  occasion." — Prof.  Bryce's  American  Com- 
monwealth, I.,  p.  343. 


I  '  ! 


1 '   I 
V  ! 


62 


Federal  Oovemmeni  in  Canada. 


[518 


W:  t 


I 
II     i 


f  'i  ■■.    ' 


the  confederation,  or  has  in  it  the  elements  of  political  discord 
and  disunion.  As  long  as  the  dominion  and  provincial  gov- 
ernments are  politically  identified,  the  danger  from  conflict  is 
minimized,  but  it  is  possible  to  suppose  the  case  of  violent 
antagonism  between  these  governinente  when  the  central  power 
mi^ht  in  a  moment  of  passion  or  arrogance  use  its  authority 
to  check  or  thwart  the  government  made  subordinate  to  it  in 
this  particular.  Happily,  so  far,  the  history  ^  of  this  large 
power  is  not  calculated  to  raise  apprehensions  that  it  is  likely 
to  be  recklessly  exercised ;  for  the  cases  which  have  heretofore 
created  much  discussion,  and  even  discontent,  have  been 
defended  on  grounds  of  public  policy  or  the  public  faith, 
though  the  wisdom  and  soundness  of  that  policy  has  been 
doubted  by  others  who  have  looked  at  the  whole  question  from 
a  purely  provincial  point  of  view.  The  sound  sense  of  the 
people  must  always  prevail  in  a  country  like  this,  and  keep 
all  governments  from  unduly  and  rashly  interfering  «vith  the 
constitutional  rights  of  the  different  sections  of  the  domin- 
ion, to  whom  has  been  granted  such  a  complete  system  of 
local  self-government  as  is  compatible  with  the  unity  arid  per- 
manency of  the  dominion  at  large.' 


^  See  correspondence,  reports  of  the  Ministers  of  Justice,  and  orders  in 
council  upon  the  subject  of  provincial  legislation,  1867-1887,  compiled 
under  direction  of  the  Ministers  of  Justice,  by  W.  E..Hodgins,  for  a  com- 
plete history  of  the  exercise  of  this  important  responsibility  thrown  upon 
the  dominion  government. 

'  The  inexpediency  of  disallowing  any  measure  believed  to  be  within  the 
constitutional  jurisdiction  of  a  province  was  strongly  asserted  in  the  debate 
in  the  Canadian  House  of  Commons  in  1889,  on  the  Quebec  Statute,  51-52 
Victoria,  c.  13.  "  An  act  respecting  the  settlement  of  the  Jesuits'  Estates." 
The  Jesuits  had  been  suppressed  by  the  Pope  in  1773,  and  their  property 
taken  possession  of  in  1800  by  the  British  government,  which  applied  the 
revenues  thereof  to  public  instruction  in  the  province  of  Lower  Canada ; 
but  the  Roman  Catholic  Church,  always  through  its  Bishops,  contended 
that  it  should  be  vested  with  all  the  estates  as  a  result  of  the  suppression 
of  the  society.  This  body,  however,  has  been  reinstated  in  these  later 
times,  and  an  act  of  incorporation  was  granted  it  by  the  Quebec  legislature  in 
1887.    The  Quebec  government  then  carried  through  the  first-mentioned 


519] 


Federal  Oov&rnment  in  Canada'. 


63 


It  is  on  the  courts  of  Canada,  aided  by  the  ripe  judgment 
and  learning  of  the  judicial  committee  of  the  privy  council,  we 
mu'^t,  after  all,  mainly  depend  for  the  satisfactory  operation  of 
our  constitutional  act.  The  experience  of  the  United  States 
has  shown  the  inesti  nable  value  of  the  decisions  given  by  the 
judges  of  the  supreme  and  the  federal  courts  on  questions  that 
have  arisen,  from  time  to  time,  in  connection  with  their  con- 


act,  authorizing  the  payment  of  $400,000  as  compensation  for  the  sale  of  the 
estates  formerly  held  by  the  Jesuits, and  as  a  means  of  settling  a  longstand- 
ing difficulty.  These  estates,  it  must  be  remembered,  became  the  property 
of  the  province  after  confederation  and  were  entirely  at  the  disposal  of 
the  legislature. 

The  negotiations  with  the  See  of  Rome,  and  the  Society  are  formally 
set  forth  in  the  preamble  of  the  act  in  the  shape  of  correspondence 
between  the  Quebec  government  and  the  representatives  of  those  reli- 
gious bodies,  and  it  is  expressly  stated  that  the  agreement  will  be  bind- 
ing only  in  so  far  as  it  shall  be  ratified  by  the  Pope  and  the  Legisla- 
ture, and  the  amount  of  compensation  was  to  remain  as  a  special  deposit 
until  the  former  had  made  known  his  wishes  respecting  its  distribution. 
The  government  in  treating  on  the  question,  did  not  "recognize  any 
civil  obligation  but  merely  a  moral  obligation."  Subsequently  the  funds 
were  distributed  by  the  Pope — the  greater  part  to  certain  educational  insti- 
tutions in  the  province,  and  the  remainder  to  the  Society.  Out  of  this 
settlement  a  heated  controversy,  involving  old  world  and  ancient  issues, 
lias  arisen  in  Canada,  and  was  transferred  to  parliament  by  a  resolution, 
formally  asserting  that  the  government  should  have  at  once  disallowed  the 
act  as  beyond  the  power  of  the  legislature  because,  among  other  things,  "it 
recognizes  the  usurpation  of  a  right  by  a  foreign  authority,  namely,  His 
Holiness,  the  Pope,  to  claim  that  his  consent  was  necessary "  to  dispose 
and  appropriate  the  public  funds  of  a  province.  It  was  contended  on  the 
other  hand  that  the  Pope,  as  the  head  of  the  Church,  was  simply  called  upon 
to  act  as  an  arbitrator  between  the  disputants  in  a  matter  in  which  the  inter- 
ests of  the  Church  were  involved.  The  inference  that  may  be  drawn  from  the 
debate  on  the  whole  question  in  the  House  of  Commons  is  this :  that  the 
almost  unanimous  vote  in  favor  of  the  course  of  the  government  in  allowing 
the  bill  when  it  came  formally  before  them  (one  hundred  and  eighty-eight 
against  thirteen)  was  chiefly  influenced  by  the  conviction  that  the 
legislature  of  the  province  had  an  unquestionable  right  to  dispose  of  its  own 
funds  as  it  might  think  proper,  or  in  the  words  of  the  minute  of  council, 
approved  by  the  governor-general,  "  the  subject  matter  of  the  act  is  one  of 
provincial  concern,  only  having  relation  to  a  fiscal  matter  entirely  within 


64 


Federal  Oovemment  in  Canada. 


[620 


stitution.  The  name  of  Chief  Justice  Marshall,  especially, 
must  be  always  associated  with  their  fundamental  law ;  for  it 
is  in  a  great  measure  owing  to  his  great  legal  knowledge,  to 
his  broad  views,  to  his  capacity  of  comprehending  the  true 
spirit,  scope  and  meaning  of  the  principles  laid  down  in  the 
constitution,  and  to  his  ability  to  apply  them  to  the  circum- 
stances that  surrounded  him  at  v^   y  critical  times,  that  the 


Ail 


ii'i 


the  control  of  the  legislature  of  Quebec."  In  the  course  of  the  learned 
debate'  that  took  place  on  the  merits  of  this  very  vexatious  issue  a  very 
clear  exposition  was  given  by  several  speakers  from  their  respective  points 
of  view  of  the  principles  by  which  the  relations  between  the  dominion  and 
the  provincial  governments  should  be  governed.  But  there  is  another 
conclusion  which  I  think  may  be  fairly  deduced  from  a  debate  of  this  char- 
acter. An  executive  power  which  can  be  thus  questioned  in  the  political 
arena  seems  obviously  fraught  with  perilous  consequences.  If  all  questions 
of  the  constitutionality  of  a  provincial  act  could  be  decided  only  in  the 
courts,  parliament  would  be  saved  the  discussion  of  matters,  which,  once 
mixed  up  with  political  and  religious  issues,  must  ne'^ssarily  be  replete 
with  danger  in  a  country  like  Canada,  with  a  population  nearly  half 
Roman  Catholic.  In  Canada  and  the  United  States,  there  is  so  much 
respect  for  the  law  and  the  bench  that  the  people  rarely  question  the 
wisdom  of  a  judicial  decision  on  any  subject  of  importance.  Can  as  much 
be  said  for  the  judgment  of  a  political  body,  however  honestly  rendered  it 
may  be  ? 

The  following  remarks  of  a  very  judicious  writer,  Professor  Dicey,  in  the 
Law  of  the  Constitution,  (p.  166)  may  well  be  quoted  in  this  connection : 
"  The  main  reason  why  the  United  States  have  carried  out  the  federal 
system  with  unqualified  success  is  that  the  people  of  the  union  are  more 
thoroughly  imbued  with  constitutional  ideas  than  any  other  existing  nation. 
Constitutional  questions  arising  out  of  either  the  constitutions  of  the  sev- 
eral states  or  the  articles  of  the  federal  constitution  are  of  daily  occurrence, 
and  constantly  occupy  the  courts.  Hence  the  people  become  a  people  of 
constitutionalists ;  and  matters  which  excite  the  strongest  possible  feeling, — 
as  for  instance,  the  right  of  the  Chinese  to  settle  in  the  country, — are 
determined  by  the  judicial  bench,  and  the  decision  of  the  bench  is  acqui- 
esced in  by  the  people.  This  acquiescence  or  submission  is  due  to  the 
Americans  inheriting  the  legal  notions  of  the  common  law ;  that  is,  of  the 
most  legal  system  of  law,  if  the  expression  may  be  allowed,  in  the  world." 
See  also  Hare's  American  Constitutional  Law,  vol.  I.,  pp.  122, 123. 


I  Se'  Canadton  Hansaid  for  April  26,  27  and  28, 1889,, 


^ 


521] 


Federal  OovemmerU  in  Canada. 


66 


union  gained  strength  during  the  years  he  preblJcv!  over  the 
Supreme  Court.' 

The  Quebec  convention  of  1864  appears  to  have  fully  ap- 
preciated the  neccHsity  of  having  a  Supreme  Court  of  Canada 
which  would  bear  as  much  resemblance  as  |)ossible  to  the 
American  tribunal ;  for  they  agreed  to  a  resolution,  which  is 
now  embodied  in  the  section  of  the  British  North  America  Act 
which  provides  "  for  the  constitution,  maintenance  and  organ- 
ization of  a  general  court  of  appeal  for  Canada,  and  for  the 
establishment  of  any  additional  courts  for  the  better  adminis- 
tration of  the  laws  of  Canada."  The  Judiciary  of  Canada, 
from  the  lowest  to  the  highest,  can  and  do  constantly  decide 
on  the  constitutionality  of  acts,  passed  by  the  various  legisla- 
tive authorities  of  the  Dominion.  They  do  so  in  their  capa- 
city as  judges  and  expounders  of  the  law,  and  not  because 
they  have  any  especial  commission,  or  are  invested  with  any 
political  powers  or  duties  by  the  constitution.^ 

Unlike  the  United  States,  Canada  has  no  federal  courts 
established  in  the  provinces,  although  the  section  just  quoted 
seems  to  provide  for  some  such  courts,  should  they  be  consid- 
ered necessary.  The  constitution,  maintenance  and  organiza- 
tion of  the  courts  in  the  provinces  will  be  seen,  by  reference 


'Professor  Bryce  (The  American  Commonwealth,  II.,  p.  1)  very  tersely 
shows  the  importance  of  the  influence  that  the  decisions  of  the  supreme 
court  have  exercised  on  the  constitution :  "  Hence,  although  the  duty  of  the 
court  is  only  to  interpret,  the  considerations  affecting  interpretation  are 
more  numerous  than  in  the  case  of  ordinary  statutes,  more  delicate,  larger 
in  their  reach  and  scope.  They  sometimes  need  the  exercise  not  merely  of 
legal  acumen  and  judicial  fairness,  but  of  a  comprehension  of  the  nature 
and  methods  of  government  which  one  does  not  demand  from  the  European 
judge,  who  walks  in  the  narrow  path  traced  for  him  by  ordinary  statutes. 
It  is  therefore  hardly  an  exaggeration  to  say  that  the  American  constitu- 
tion, as  it  now  stands,  with  the  mass  of  foregoing  decisions  which  explain 
it,  is  a  far  more  complete  and  finished  instrument  than  it  was  when  it  came 
first  new  from  the  hands  of  the  convention.  It  is  not  merely  their  work 
but  the  work  of  the  judges,  and,  most  of  all,  of  one  man,  the  great  Chief 
Justice  Marshall." 

'Seell.  Bryce,  p.  184. 


!i' 


66 


Federal  Government  in  Canada. 


[522 


i 


if 

1:1 


i  1:1 


■Li*    -li 


'm 


to  the  ninety-second  section,  to  be  within  the  matters  placed 
under  provincial  jurisdiction,  though  the  judges  are  appointed 
and  paid  by  the  dominion  government,  with  the  exception  of 
the  courts  of  probate  in  Nova  Scoti?,  and  New  Brunswick.^ 

In  1875,  however,  it  was  deemed  advisable  to  pass  an  act 
providing  for  the  establishment  of  a  Supreme  Court  and  Ex- 
chequer Court  of  Canada.'  But  the  court  is  only  a  general 
court  of  appeal  for  Canada  in  a  limited  sense,  since  the  exist- 
ing right  of  appeal  in  the  various  provinces  to  the  privy 
council  has  been  left  untouched.  Nor  can  it  be  called  a  final 
court  of  appeal  for  Canada,  since  the  privy  council  entertains 
appeals  from  its  judgments  by  virtue  of  the  exercise  of  the 
royal  prerogative.'  This  court  consists  of  a  chief  justice  and 
five  puisne  judges,  two  of  whom,  at  least,  must  be  appoiuted 
from  the  bench  or  bar  of  the  province  of  Quebec — a  provision 
intended  to  give  the  court  the  assistance  of  men  specially 
versed  in  French  Canadian  law.  With  certain  exceptions  set 
forth  in  the  act,  an  appeal  can  lie  to  this  court  and  from  the 
highest  court  of  final  resort  in  a  province.  The  governor- 
general  in  council  may  refer  to  the  supreme  court  for  hearing 
or  consideration  any  matter  which  he  deems  advisable  in  the 
public  interest  ;*  but  in  certifying  their  opinion,  the  judges, 


m 


m 


^  Sees.  96-97.  The  Maritime  Court  of  Ontario  is,  however,  a  federal 
court. 

'  38  Vict.,  ch.  11.  The  act  was  amended  in  1887,  by  removing  the  Exche- 
quer Court  jurisdiction  from  the  Supreme  Court  and  giving  it  to  a  judge 
especially  appointed  for  that  purpose.     50-51  Vict.,  ch.  16. 

'  Cassell's  Practice  of  the  Supreme  Court  of  Canada,  p.  4. 

*No  such  provision  exists  in  the  case  of  a  federal  judiciary.  That 
branch  of  the  government  can  be  called  upon  "  only  to  decide  controversies 
brought  before  them  in  a  legal  form ;  and  therefore  are  bound  to  abstain 
from  any  extra-j'idicial  opinions  upon  points  of  law,  even  though  solemnly 
requested  by  the  executive.  President  Washington,  in  1793,  requested  its 
opinion  upon  the  constitution  of  the  treaty  with  France  of  1778  ;  but  they 
declined  to  give  any  opinion  for  the  reasons  just  stated."  Story's  Commen- 
taries (Cooley*s  ed.),  g  1571. 

Some  of  the  state  constitutions  provide  for  a  similar  reference  by 
the  governor  or  legislature  to  the  Supreme  Court  of  the  state.    *'  The 


623] 


Federal  Oovemment  in  Canada. 


67 


following  the  practice  of  the  judicial  committee,  do  not  give 
any  reasons.  On  more  than  one  occasion  this  power  of  refer- 
ring a  question,  on  which  there  is  a  legal  or  constitutional 
difficulty,  has  been  found  very  useful  ^o  the  parties  interested, 
as  well  as  to  the  country  at  large.^  It  is  also  provided  that 
controversies  between  the  dominion  and  any  province,  or 
between  the  provinces  themselves,  may  be  referred  to  the 
exchequer  court,  and  on  appeal  from  that  court  to  the 
supreme  court,  and  cases  in  which  the  question  of  the  validity 
of  a  dominion  or  provincial  act  is  shown  to  be  material  to  the 
issue,  ma)*  come  within  the  jurisdiction  of  the  court,  whenever 
the  legislature  of  one  province  has  passed  an  act — as  has  been 
done  by  Ontario,  Nova  Scotia,  and  British  Columbia — ^agree- 
ing to  such  references.  Either  house  of  parliament  may  also 
refer  to  the  court  any  private  bill  for  its  report  thereon,  but 
so  far  the  senate  alone  has  availed  itself  of  this  provision  in 
the  case  of  a  bill  of  doubtful  jurisdiction.* 

It  will  be  seen  from  this  summary  of  the  powers  of  the 
court  that  it  is  intended  to  make  it,  as  far  as  practicable,  a 

judges  of  the  Supreme  Court  of  Massachusetts  suggest  in  their  very 
learned  and  instructive  opinion  delivered  to  the  legislature,  December  31, 
1878,  that  this  provision,  which  appears  first  in  the  Massachusetts  consti- 
tution of  1780,  and  was  doubtless  borrowed  thence  by  the  other  states,  evi- 
dently had  in  view  the  usage  of  the  British  constitution,  by  which  the 
King  as  well  as  the  House  of  Lords,  whether  acting  in  their  judicial  or 
in  their  legislative  capacity,  had  the  right  to  demand  the  opinion  of  the 
twelve  judges  of  England.  This  is  still  sometimes  done  by  the  House  of 
Lords;  but  the  opinions  of  the  judges  are  not  necessarily  followed  by  that 
House,  and  though  always  reported  are  not  deemed  to  be  binding  pronounce- 
ments of  law  similar  to  the  decisions  of  a  court."  Bryce's  American  Com- 
monwealth, II.,  48,  49. 

*  Cassell's  Practice  of  the  Supreme  Court  of  Canada,  p.  4.  The  latest 
case  of  reference  to  the  judges  was  one  of  a  serious  controversy  between  the 
government  of  Manitoba  and  the  Canadian  Pacific  Bailroad,  which  refused 
permission  to  a  Manitoba  railroad  to  cross  its  track ;  but  this  case  was  re- 
ferred under  section  99  of  the  Railway  Act  (57  Vict.,  c.  29,  1888).  The 
question  of  the  validity  of  the  Liquor  License  Act  wor  referred  under  sec. 
26  of  a  special  act,  47  Vict.,  c.  32. 

'  Bourinot's  Pari.  Practice  in  Canada,  pp.  606-607. 


68 


Federal  Government  in  Canada. 


[524 


li 


II 


1 


li  i^r 

ill. 
I' 

ill 


a^v 


court  for  the  disposal  of  controversies  that  arise  in  the  work- 
ing of  the  constitutional  system  of  Canada.  So  far  its 
decisions  have  won  respect  in  Canada,  and  have  been  rarely 
overruled  by  the  judicial  committee  of  the  privy  council, 
which,  by  virtue  of  Her  Majesty's  royal  prerogative,  enter- 
tains appeals  from  the  court  where  it  is  considered  that  any 
error  of  law  has  been  made,  and  substantial  interests  have 
been  involved/ 

As  I  have  in  the  first  paragraph  of  this  lecture  referred  to 
the  importance  of  this  appeal  to  the  privy  council,  it  is  not 
necessary  that  I  should  dwell  here  on  the  subject. 

I  have  now  shown  you  the  leading  features  of  the  constitu- 
tional relations  that  exist  between  the  dominion  and  the  pro- 
vinces, and  have  stated  some  of  the  principles,  as  I  understand 
them,  that  should  guide  the  construction  of  the  fundamental  char- 
ter under  which  each  authority  acts.  In  other  lectures,  I  shell 
review  the  duties  and  functions  of  the  executive,  administra- 
tive and  parliamentary  bodies  by  which  the  federal  system  is 
governed ;  but  there  are  a  few  other  points  that  properly  fall 
within  the  scope  of  this  lecture.  First  of  all,  and  the  most 
important  in  many  ways,  are  the  methods  that  the  constitution 
provides  for  meeting  the  financial  necessities  of  the  dominion 
and  of  the  provinces.  The  ninety-second  section  shows  that 
the  dominion  parliament  can  raise  money  by  any  mode  or  sys- 
tem of  taxation,  borrow  money  on  the  public  credit,  issue 
paper  money  and  regulate  trade  and  commerce.     Revenue  is 

'  See  Sec.  71  of  Supreme  Court  Act,  which  after  setting  forth  that  the  judg- 
ment of  the  court  shall  be  final,  adds  the  proviso,  "  saving  any  right  which 
Her  Majesty  may  be  graciously  pleased  to  exercise  by  virtue  of  her  royal 
prerogative.  But  by  an  act  passed  by  the  Canadian  parliament  in  1888, 
(61  Vict.,  c.  43)  it  is  provided  that "  notwithstanding  any  royal  prerogative" 
no  appeal  shall  be  brought  in  any  criminal  case  from  any  judgment  or 
order  of  any  court  in  Canada  to  any  court  of  appeal  in  the  United  King- 
dom. Exception  was,  I  understand,  taken  to  this  act  by  the  imperial  author- 
ities, but  it  does  not  appear  to  have  been  disallowed.  This  strong  assertion 
of  Canadian  judicial  independence  rests  on  the  powers  given  to  the  Cana- 
dian parliament  by  sections  91  (sub-s.  27)  and  101  of  B.  N.  A.  Act,  1867. 


525] 


Federal  Government  in  Canada. 


69 


accordingly  raised  principally  from  duties  imposed  on  imports, 
and  on  certain  articles,  chiefly  tobacco  and  liquors,  manufac- 
tured in  the  dominion,  and  in  addition  to  these  there  are  cer- 
tain minor  revenues  collected  from  the  sale  of  lands  in  the 
north-west  territories,  over  which  the  dominion  government 
has  exclusive  control.  All  these  moneys  are  paid  into  the 
treasury,  and  form  what  is  known  in  law  as  "the  Consolidated 
Revenue  Fund  of  Canada,"  out  of  which  are  paid  all  the  costs, 
charges  and  expenses  incident  to  the  collection  and  manage- 
ment of  this  fund,  and  all  the  expenses  of  government.^ 


^  fi.  N.  A.  Act,  1867,  sec.  102.  All  duties  and  revenues  over  which  the 
respective  legislatures  of  Canada,  Nova  Scotia  and  New  Brunswick  before 
and  at  the  union  had  and  have  power  of  appropriation,  except  such  por- 
tions thereof  as  are  by  this  act  reserved  to  the  respective  legislatures  of  the 
provinces,  or  are  raised  by  them  in  accordance  with  the  special  powers  con- 
ferred on  them  by  this  act,  shall  form  one  consolidated  revenue  fund,  to  be 
appropriated  for  the  public  service  of  Canada  in  the  manner  and  subject  to 
the  charges  in  this  act  provided. 

103.  The  consolidated  revenue  fund  of  Canada  shall  be  permanently 
charged  with  the  costs,  charges  and  expenses  incident  to  the  collection, 
management  and  receipt  thereof,  and  the  same  shall  form  the  first  charge 
thereon,  subject  to  be  reviewed  and  audited  in  such  manner  as  shall  be 
ordered  by  the  governor-general  in  council  until  the  parliament  otherwise 
provides. 

104.  The  annual  interest  of  the  public  debts  of  the  several  provinces  of 
Canada,  Nova  Scotia  and  New  Brunswick  at  the  union  shall  form  the  second 
charge  on  the  consolidated  revenue  fund  of  (Canada. 

105.  Unless  altered  by  the  parliament  of  Canada,  the  salary  of  the  gov- 
ernor-general shall  be  ten  thousand  pounds  sterling  money  of  the  United 
Kingdom  of  Great  Britain  and  Ireland,  payable  out  of  the  consolidated 
revenue  fund  of  Canada,  and  the  same  shall  form  the  third  charge  thereon. 

106.  Subject  to  the  several  payments  by  this  act  charged  on  the  consoli- 
dated revenue  fund  of  Canada,  the  same  shall  be  appropriated  by  the  par- 
liament of  Canada  for  the  public  service. 

107.  All  stocks,  cash,  bankers'  balances,  and  securities  for  money  belong- 
ing to  each  province  at  the  time  of  the  union,  except  as  in  this  act  men- 
tioned, shall  be  the  property  of  Canada,  and  shall  be  taken  in  reduction  of 
the  amount  of  the  respective  debts  of  the  provinces  at  the  union. 

108.  The  public  works  and  property  of  each  province  enumerated  in  the 
third  schedule  to  this  act  shall  be  the  property  of  Canada.  ' 


PS5I!3ISI 


70 


Federal  Oovemment  in  Canada. 


[526 


These  moneys  are,  in  every  instance,  voted  by  parliament, 
but  while  certain  sums  are  autliorized  annually  by  the  appro- 
priation act — which  comprises  the  annual  grants  voted  every 
session  in  supply — other  payments  are  made  under  the  sanc- 
tion of  statutes.  These  statutes,'  which  are  permanent  and  can 
only  be  repealed  or  amended  by  act  of  parliament,  provide 
for  salaries  of  the  governor-general,  lieutenant-governors, 
ministers  of  the  crown,  judges,  and  other  high  functionaries, 


II 


m 


109.  All  lands,  mines,  minerals  and  royalties  belonging  to  the  several 
provinces  of  Canada,  Nova  Scotia  and  New  Brunswick  at  the  union,  and 
all  sums  then  due  or  payable  for  such  lands,  mines,  minerals  or  royalties, 
shall  belong  to  the  several  provinces  of  Ontario,  Quebec,  Nova  Scotia  and 
New  Brunswick  in  w^hich  the  same  are  situate  or  arise,  subject  to  any  trusts 
existing  in  respect  thereof,  and  to  any  interest  other  than  that  of  the  pro- 
vince in  the  same. 

110.  All  assets  connected  with  such  portions  of  the  public  debt  of  each 
province  as  are  assumed  by  that  province,  shall  belong  to  that  province. 

111.  Canada  shall  be  liable  for  the  debts  and  liabilities  of  each  province 
existing  at  the  union. 

112.  Ontario  and  Quebec  conjointly  shall  be  liable  to  Canada  for  the 
amount  (if  any)  by  which  the  debt  of  the  province  of  Canada  exceeds  at 
the  imion  sixty-two  million  five  hundred  thousand  dollars,  and  shall  be 
charged  with  interest  at  the  rate  of  five  per  centum  per  annum  thereon. 

113.  The  assets  enumerated  in  the  fourth  schedule  to  this  act,  belonging 
at  the  union  to  the  province  of  Canada,  shall  be  the  property  of  Ontario 
and  Quebec  conjointly. 

114.  Nova  Scotia  shall  be  liable  to  Canada  for  the  amount  (if  apy)  by 
which  its  public  debt  exceeds  at  the  union  eight  million  dollars,  and  shall 
be  charged  with  the  interest  at  the  rate  of  five  per  centum  per  annum 
thereon. 

116.  New  Brunswick  shall  be  liable  to  Canada  for  the  amount  (if  any)  by 
which  its  public  debt  exceeds  at  the  union  seven  million  dollars,  and  shall 
be  charged  with  interest  at  the  rate  of  five  per  centum  per  annum  thereon. 

116.  Incase  the  public  debts  of  Nova  Scotia  and  New  Brunswick  do  not 
at  the  union  amount  to  eight  million  and  seven  million  dollars  respectively, 
they  shall  respectively  receive,  by  half-yearly  payments  in  advance  from 
the  government  of  Canada  interest  at  five  per  centum  per  annum  on  the 
difference  between  the  actual  amounts  of  their  respective  dehu>  and  such 
stipulated  amounts. 

117.  The  several  provinces  shall  retain  all  their  respective  public  pro- 
perty not  otherwise  disposed  of  in  this  act,  subject  to  the  right  of  Canada  to 


627] 


Federal  Government  in  Canada. 


71 


whose  remuneration  it  is  understood  should  not  depend  on 
the  annual  votes.  All  moneys  are  paid  out  of  the  treasury 
under  certain  forms  required  by  statute,  and  a  thorough  sys- 
tem of  audit  prevents  any  public  expenditure  not  authorized 
by  parliament,  although  the  law  permits  the  issue  of  governor- 
general's  warrants  in  certain  cases  of  emergency,  but  these, 
too,  must  at  the  first  opportunity  he  laid  before,  and  be  sanc- 
tioned by  parliament.    Large  sums  are,  at  times,  borrowed  on 


assume  any  lands  or  public  property  required  for  fortifications  or  for  the 
defence  of  the  country. 

118.  The  following  sums  shall  be  paid  yearly  by  Canada  to  the  several 
provinces  for  the  support  of  their  governments  and  legislatures : 

DOLiiAne. 

Ontario Eighty  thousand. 

Quebec Seventy  thousand. 

Nova  Scotia        --..-.  Sixty  thousand. 

New  Brunswick      ..---.        Fifty  thousand. 

Two  hundred  and  sixty  thousand  ; 

and  an  annual  grant  in  aid  of  each  province  shall  be  made,  equal  to  eighty 
cents  per  head  of  the  population  as  ascertained  by  the  census  of  one  thou« 
sand  eight  hundred  and  sixty  one,  and  in  the  case  of  Nova  Scotia  and  New 
Brunswick,  by  each  subsequent  decennial  census  until  the  population  of 
each  of  those  two  provinces  amounts  to  four  hundred  thousand  souls,  at 
which  rate  such  grants  shall  thereafter  remain.  Such  grants  shall  be  in  full 
settlement  of  all  future  demands  on  Canada,  and  shall  be  paid  half-yearly 
in  advance  to  each  province ;  but  the  government  of  Canada  shall  deduct 
from  such  grants,  as  against  any  province,  all  sums  chargeable  as  interest  on 
the  public  debt  of  that  province  in  excess  of  the  several  amounts  stipulated 
in  this  act. 

119.  New  Brunswick  shall  receive,  by  half-yearly  payments  in  advance 
from  Canada,  for  the  period  of  ten  years  from  the  union,  an  additional 
allowance  of  sixty -three  thousand  dollars  per  annum ;  but  as  long  as  the 
public  debt  of  that  province  remains  under  seven  million  dollars,  a  deduc- 
tion equal  to  the  interest  at  five  per  centum  per  annum  on  such  deficiency 
shall  be  made  from  that  allowance  of  sixty-three  thousand  dollars. 

120.  All  payments  to  be  made  under  this  act,  or  in  discharge  of  liabilities 
created  under  any  act  of  the  provinces  of  Canada,  Nova  Scotia  and  New 
Brunswick  respectively,  and '  assumed  by  Canada,  shall,  until  the  parlia- 
ment of  Canada  otherwise  directs,  be  made  in  such  form  and  manner  as  may 
from  time  to  time  be  ordered  by  the  governor-general  in  council. 


72 


Federal  Oovemmefni  in  Canada. 


[528 


li 


the  public  credit,  under  the  conditions  laid  down  by  parlia- 
ment, in  order  to  meet  the  heavy  expenditures  required  for  the 
extensive  system  of  public  works  in  which  the  dominion  is 
engaged.  The  treasury  also  issues  a  number  of  notes,  of  which 
the  sum  of  four  dollars  is  the  highest  denomination — the 
banks  of  Canada  being  banks  of  issue  for  large  suras  within 
fixed  limits — but  the  dominion  issue  in  any  one  year  may  not 
exceed  four  million  dollars,  and  the  total  amount  issued  and 
outstanding,  at  any  time,  may  not  exceed  twenty  millions, 
secured  for  redemption  by  gold  and  Canadian  guaranteed 
securities.^ 


'11;, 


I 


\::\i\ 


121.  All  articles  of  the  growth,  produce  or  manufacture  of  any  one  of  the 
provinces  shall,  from  and  after  the  union,  be  admitted  free  into  each  of  the 
other  provinces. 

122.  The  customs  and  excise  laws  of  each  province  shall,  subject  to  the 
provisions  of  this  act,  continue  in  force  until  altered  by  the  parliament  of 
Canada. 

123.  Where  customs  duties  are,  at  the  union,  leviable  on  any  goods, 
wares  or  merchandises  in  any  two  provinces,  those  goods,  wares  and  mer- 
chandises may,  from  and  after  the  union,  be  imported  from  one  of  those 
provinces  into  the  other  of  them,  on  proof  of  payment  of  the  customs  duty 
leviable  thereon  in  the  province  of  exportation,  and  on  payment  of  such 
further  amount  (if  any)  of  customs  duty  as  is  leviable  thereon  in  the 
province  of  importation. 

124.  Nothing  in  this  act  shall  affect  the  right  of  New  Brunswick  to  levy 
the  lumber  dues  provided  in  chapter  fifteen  of  title  three  of  the  Revised 
Statutes  of  New  Brunswick,  or  in  any  act  amending  that  act  before  or  after 
the  Union,  and  not  increasing  the  amount  of  such  dues ;  but  the  lumber  of 
any  of  the  provinces  other  than  New  Brunswick  shall  not  be  subject  to 
such  dues. 

125.  No  lands  or  property  belonging  to  Canada  or  any  province  shall  be 
liable  to  taxation. 

126.  Such  portions  of  the  duties  and  revenues  over  which  the  respective 
legislatures  of  Canada,  Nova  Scotia  and  New  Brunswick  had  before  the 
union,  power  of  appropriation,  as  are  by  this  act  reserved  to  the  respective 
governments  or  legislatures  of  the  provinces,  and  all  duties  and  revenues 
raised  by  them  in  accordance  with  the  special  powers  conferred  upon  them 
by  this  act,  shall  in  each  province  form  one  consolidated  revenue  fund  to 
be  appropriated  for  the  public  service  of  the  province. 

>  Can.  Rev.  Stat.,  chaps.  28,  29,  30,  31,  32,  33,  etc. 


629] 


Federal  Oovetmment  in  Canada. 


78 


As  respects  the  provinces,  their  revenues  arise  from  the 
proceeds  of  royalties  from  mines  (chiefly  valuable  in  Nova 
Scotia),  the  sales  of  Crown  lands  and  minerals,  and  the  subsi- 
dies granted  by  authority  of  the  British  North  America  Act 
for  the  purposes  of  enabling  them  to  carry  on  their  govern- 
ment.    The  ninety-second  section  authorizes  the  legislatures 
to  impose  direct  taxation  on  the  province  in  order  to  raise  a 
revenue  for  provincial  purposes,  to  borrow  money  on  the  sole 
credit  of  the  province,  and  to  raise  money  from  shop,  saloon, 
tavern  and  auctioneer  licenses,  in  order  to  the  raising  of  a  rev- 
enue for  provincial,  local,  or  municipal  purposes.     When  the 
Quebec  convention  sat  this  question  of  provincial  revenue  was 
one  that  gave  the  delegates  the  greatest  difficulty.     In  all  the 
provinces  the  sources  of  revenue  were  chiefly  customs  and 
excise  duties  which  had  to  be  set  apart  for  the  general  govern- 
ment.    Some  of  the  delegates  from  Ontario,  where  there  had 
been  for  many  years  an  admirable  system  of  municipal  gov- 
ernm. ,     in  existence  which  provided  funds  for  education  and 
local  improvements,  saw  many  advantages  in  direct  taxation ; 
but  the  representatives  of  the  other  provinces  could  not  con- 
sent to  such  a  proposition,  especially  in  the  case  of  Nova 
Scotia,  New  Brunswick  and  Prince  Edward  Island,  where 
there  was  no  municipal  system,  and  the  people  depended  al- 
most exclusively  on  the  annual  grants  of  the  legislature  for 
the  means  to  meet  their  local  necessities.^  All  of  the  delegates, 
in  fact,  felt  that  to  force  the  provinces  to  resort  to  direct  tax- 
ation as  the  only  method  of  carrying  on  their  government, 
would  be  probably  fatal  to  the  success  of  the  scheme,  and  it 
was  finally  decided  to  grant  annual  subsidies,  based  on  popu- 
lation, the  relative  debts,  the  financial  position,  and  such  other 
facts  as  should  be  brought  fairly  into  the  consideration  of  the 
case.     These  financial  arrangements  were  incorporated  with 
the  act  of   union,*  and  necessarily  entail  a    heavy  expense 


'  See  speech  of  Hon.  George  Brown,  C!onfederation  Debates,  1865,  p.  92. 
'See  Can.  Bev.  Stat.,  c.  46. 

6 


I!; 


74 


Federal  Government  in  Canada. 


[530 


annually  on  the  exchequer  of  the  dominion.  In  consequence 
of  the  demand  that  arose  in  Nova  Scotia  for  "  better  terms," 
previous  to  and  after  the  union,  the  parliament  of  the  domin- 
ion, in  the  session  of  1869,  legislated  so  as  to  meet  the  diffi- 
culty that  had  arisen,  and  it  was  accordingly  decided  to  grant 
additional  allowances  to  the  provinces,  calculated  on  increased 
amounts  of  debt  as  compared  with  wiiat  they  were  allowed  to 
enter  the  union.* 

Manitoba,  British  Columbia,  and  Prince  Edward  Island 
also  obtained  similar  annual  subsidies  in  accordance  with  the 
general  basis  laid  down  in  the  constitution.  It  is  from  these 
subsidies  t"hat  the  provinces  derive  the  greater  part  of  their 
annual  revenues.  Ontario  is  in  the  most  favorable  posi- 
tion from  the  very  considerable  revenue  raised  from  lands 
and  timber  dues.  The  provinces  are  also  at  times  bor- 
rowers on  the  money  market,  especially  Quebec,  in  order  to 
meet  pressing  liabilities.  In  the  maritime  provinces  a  system 
of  municipal  institutions,  except  in  Prince  Edward  Island,  has 
been  at  last  adopted,  and  the  local  treasury  in  a  measure 
relieved ;  but  still  on  account  of  the  lavish  expenditure,  at 
times  considered  necessary  by  the  legislature,  there  is  too  often 
a  complaint  that  the  local  funds  are  insufficient  for  general 
purposes. 

From  this  necessarily  meagre  summary  of  the  financial 
methods  by  which  the  dominion  and  the  provinces  meet  the 
large  expense  required  for  public  purposes,  it  will  be  seen  that 
there  is  an  intimate  connection  between  the  go^'ernraents  that 
does  not  exist  in  the  American  union,  where  each  state  meets 
all  its  local  requirements  by  direct  taxation  and  is  not  depen- 
dent on  the  federal  authority. 

The  wisdom  of  this  policy  has  been  more  than  once  ques- 
tioned since  the  union  has  been  working  itself  out.  As  a  large 
portion  of  their  revenues — in  certain  cases  the  largest  portion 
— is  not  derived  from  local  sources,  there  has  not  been  always, 


•  See  Can.  Rev.  Stat.,  c.  46. 


531] 


Federal  Oovemment  in  Canada. 


75 


|n 


it  is  believed,  that  effort  for  economical  expenditure  that  would 
probably  have  been  made  if  all  the  funds  were  raised  from 
local  sources,  and  from  direct  taxation  as  in  the  United  States. 
The  consequence  already  has  been  that  demands  have  been 
made  from  time  to  time,  on  the  dominion  treasury  for  the  sub- 
sidizing of  railway  and  other  schemes,  which  are  really 
provincial  undertakings,  and  which  are  assisted  as  a  means  of 
relieving  the  local  treasury  and  satisfying  the  representatives 
from  that  section.  Each  province  should  be,  as  far  as  possi- 
ble, in  a  position  of  local  independence,  and  free  from  suspicion 
of  political  pressure  on  the  central  government  at  critical 
times. 

The  federal  government  executes  its  postal  and  revenue 
services  through  its  own  officers ;  but,  unlike  the  United 
States,  it  has  ^o  courts  of  its  own  in  the  provinces  for  federal 
objects.  Still  thv>  result  is  practically  the  same,  for  it  can  use 
the  whole  system  of  the  administration  of  justice  should  it  l>e 
necessary  to  resort  to  it.  The  dominion  government  can 
claim  the  allegiance  of  the  people  of  the  whole  country  to 
assist  it  in  working  out  efficiently  and  securing  those  great 
national  interests,  of  which  it  is  the  guardian  under  the  con- 
stitution. It  has  the  control  of  the  militia,  and  can  protect 
the  existence  of  the  dominion,  and  repress  rebellion  as  in  the 
case  of  the  unfortunate  disturbances  in  the  north-west  in  1886. 
The  government  of  Canada  has  a  quasi  national  character,  and 
is  bound  to  maintain  by  all  the  means  that  the  constitution 
gives  it  the  union  into  which  the  provinces  freely  entered  in 
1867.  On  the  other  hand,  the  province  in  many  respects 
touches  more  nearly  the  civil  and  the  political  side  of  the 
people  within  its  limits  than  the  central  authority  with  its 
more  general  or  national  attributes  of  power.  The  exaction 
of  indirect  taxation  does  not  come  home  immediately  to  all 
classes  in  every  day  life  like  the  tax  collector  who  presents 
himself  under  the  municipal  system  in  vogue  in  the  provinces. 
Comfort  and  convenience,  liberty  and  life,  civil  rights  and 
property,  endless  matters  that  daily  affect  a  community  are 


mm 


76 


Federal  Oovemmeni  in  Canada. 


[532 


I 


directly  within  the  jurisdiction  of  the  provincial  organisms. 
If  the  dominion  should  cease  to-morrow  to  exercise  its  consti- 
tutional powers,  the  province  would  still  remain — for  it  existed 
before  the  union — and  its  local  organization  could  very  soon 
be  extended  to  embrace  those  powers  which  now  belong  to  the 
central  authority. 

The  federal  structure,  whatever  may  be  its  defects  and  weak- 
nesses in  certain  details,  on  the  whole  seems  well  adapted  to 
meet  the  wants  and  necessities  of  the  people.  From  the  foun- 
dation to  the  crowning  apex  it  has  many  attributes  of  har- 
mony and  strength.  It  is  framed  on  principles  which,  as 
tested  by  British  and  American  experience,  are  calculated  to 
assist  national  development  and  give  full  liberty  to  local  insti- 
tutions. At  the  bottom  of  the  edifice  are  those  parish,  town- 
ship, county  and  municipal  institutions  which  are  eminently 
favorable  to  popular  freedom  and  local  improvement.  Then 
comes  the  more  important  provincial  organization,  divided 
into  those  executive,  legislative  and  judicial  authorities,  which 
are  essential  to  the  working  of  all  provincial  constitutions. 
Next  comes  the  central  government,  which  assumes  a  national 
dignity  and  affords  a  guarantee  of  protection,  unity  and  secu- 
rity to  the  whole  system. 

The  apex  of  the  structur?  is  the  imperial  power — in  other 
words,  the  Sovereign  who  holds  her  exalted  position,  not  by 
the  caprice  of  a  popular  vote,  but  with  all  the  guarantees  of 
permanency  with  which  the  British  constitution  surrounds  the 
Throne. 


LECTURE  III. 


THE  GOVERNMENT  AND  THE  PARLIAMENT. 


Sir  Henry  Maine,  in  common  with  other  eminent  writers 
on  government,  lias  dwelt  on  the  fact  that  the  framers  of  the 
existing  Federal  Union  of  the  United  States  regarded  the 
opinions  expressed  by  Montesquieu  in  the  Esprit  des  Lois  as 
of  paramount  importance,  and  that  none  had  more  weight  with 
the  writers  of  the  Federalist,  that  admirable  series  of  commen- 
taries on  the  constitution,  than  that  which  affirmed  the  essen- 
tial separation  of  the  executive,  legislative  and  judicial  powers. 
The  lines  accoi*dingly  that  separate  these  respective  depart- 
ments are  drawn  with  remarkable  distinctness  in  the  American 
system.  Their  object  was  to  impose  every  possible  check  upon 
the  several  agencies  of  government,  so  that  one  could  not  com- 
bine with  the  other,  to  the  injury  of  the  third.  In  the  Cana- 
dian as  in  all  other  systems  that  derive  their  origin  from 
England,  this  same  wise  principle  is  carefully  carried  out, 
though  not  to  the  same  extent  a«  in  the  United  States.  The 
judiciary  has  been  wisely  kept  entirely  distinct  from  all  other 
authorities  since  1841,  and  it  is  now  impossible  for  the  judges 
to  sit  in  the  legislative  and  executive  councils  and  exercise  a 
direct  influence  in  political  affairs.  In  the  case  of  the  execu- 
tive, however,  as  I  shall  show  later  on,  there  is  a  direct  con- 
nection between  it  and  the  legislative  department,  which  in 
many  respects  operates  in  the  direction  of  good  government 
and  efficient  legislation. 

As  I  have  already  shown  in  a  previous  lecture  the  head  of 
the  executive  authority  is  the  Queen,  who  is  represented  by 

77 


^^ 


■•i 


78 


Federal  Oovemment  in  Canada. 


[634 


the  governor-general  advised  by  a  privy  council.*  The  gover- 
nor-general us  the  acting  head  of  the  executive  of  Canada, 
assembles,  prorogues  and  dissolves  parliament  and  assents  to 
or  reserves  bills  in  the  name  of  her  majesty ;  but,  in  the  dis- 
charge of  these  and  all  other  executive  duties  which  are  within 
the  limits  of  his  commission,  and  in  conformity  with  the  con- 
stitution, he  acts  entirely  by  and  with  the  advice  of  his 
council  who  must  always  have  the  support  of  the  house  of 
commons.  Even  in  matters  of  imperial  interest  affecting 
Canada,  he  consults  with  the  council  and  submits  their  views 
to  the  colonial  secretary  of  state  in  England.  On  Canadian 
questions  clearly  within  the  constitutioii.il  jurisdiction  of  the 
dominion  he  cannot  act  apart  from  his  advisers,  but  is  bound 
by  their  advice.  Should  he  differ  from  them  on  some  vital 
question  of  principle  or  policy  he  must  either  recede  from 
his  own  position  or  be  prepared  to  accept  the  great  responsi- 


^  B.  N.  A.  Act,  1867,  sec.  10.  The  provisionH  of  this  act  referring  to  the 
governor-general  extend  and  apply  to  the  governor-general  for  the  time 
being  of  Canada,  or  other  the  chief  executive  officer  or  administrator  for 
the  time  being  carrying  on  the  governtiient  of  Canada  on  behalf  and  in  the 
name  of  the  Queen,  by  whatever  title  he  is  designated. 

11.  There  shall  be  a  council  to  aid  and  advise  the  government  of  Canada, 
to  be  styled  the  Queen's  Privy  Council  for  Canada ;  and  the  persons  who 
are  to  be  members  of  that  ccuncil  shall  be  from  time  to  time  chosen  and 
summoned  by  the  governor-general  and  sworn  in  as  privy  councillors,  and 
members  thereof  may  be  from  time  to  time  removed  by  the  governor- 
general. 

12.  All  powers,  authorities  and  functions  which,  under  any  act  of  the 
parliament  of  Great  Britain,  or  of  the  parliament  of  the  United  Kingdom 
of  Great  Britain  and  Ireland,  or  of  the  legislature  of  Upper  Canada,  Lower 
Canada,  Canada,  Nova  Scotia  or  New  Brunswick,  are  at  the  union  vested 
in  or  exercisable  by  the  respective  governors  or  lieutenant-governors  of 
those  provinces,  with  the  advice,  or  with  the  advice  and  consent,  of  the 
respective  executive  councils  thereof,  or  in  conjunction  with  those  councils, 
or  with  any  number  of  members  thereof,  or  by  those  governors  or  lieuten- 
ant-governors individually,  shall,  as  far  as  the  same  continue  in  existence 
and  capable  of  being  exercised  after  the  union  in  relation  to  the  govern- 
ment of  Canada,  be  vested  in  and  exercisable  by  the  governor-general,  with 
the  advice  or  with  the  advice  and  consent  of  or  in  conjunction  with  the 


636] 


Federal  Oovemment  in  Canada. 


79 


bility  of  dismissinf^  them  ;  but  such  an  alternative  is  an 
extreme  exercise  of  authority  and  not  in  consonance  with 
the  sound  constitutional  practice  of  modern  times,  should  his 
advisers  have  a  majority  in  the  popular  branch  of  the  legisla- 
ture. Should  he,  however,  feel  compelled  to  resort  to  this 
extreme  exercise  of  the  royal  prerogative,  he  must  be  prepared 
to  find  another  body  of  advisers,  ready  to  assume  the  full 
responsibility  of  his  action  and  justify  it  before  the  house  and 
country.  For  every  act  of  the  crown,  in  Canada  as  in  England, 
there  mu»t  be  some  one  immediately  responsible,  apart  from 
the  crown  itself.  But  a  governor,  like  any  other  subject,  can- 
not be  "freed  from  the  personal  responsibility  for  his  acts 
nor  be  allowed  to  excuse  a  violation  of  the  law  on  the  plea  of 
having  followed  the  counsels  of  evil  advisers."^  Cases 
may  arise  when  the  governor-general  will  hesitate  to  come  to 
a  speedy  conelusii>n  on  a  matter  involving  important  conse- 
quences, and  then  it  is  quite  legitimate  for  him  to  seek  advice 


Queen's  privy  council  for  Canada,  or  any  members  thereof,  or  by  the  gov- 
ernor-general individually,  aa  the  case  requires,  subject  nevertheless  (except 
with  respect  to  such  as  exist  under  acts  of  the  parliament  of  Great  Britain 
or  of  the  parliament  of  the  United  Kingdom  of  Great  Britain  and  Ireland) 
to  be  abolished  or  altered  by  the  parliament  of  Canada. 

13.  The  provisions  of  this  act  referring  to  the  governor-general  in  coun- 
cil shall  be  construed  as  referring  to  the  governor-general  acting  by  and 
with  the  advice  of  the  Queen's  privy  council  for  Canada. 

14.  It  shall  be  lawful  for  the  Queen,  if  her  majesty  thinks  fit,  to  author- 
ize the  governor-general  from  time  to  time  to  appoint  any  person  or 
any  persons  jointly  or  severally  to  be  his  deputy  or  deputies  within  any 
part  or  parts  of  Canada,  and  in  that  capacity  to  exercise  during  the  pleasure 
of  the  governor-general  such  of  the  powers,  authorities  and  functions  of  the 
governor-general  as  the  governor-general  deems  it  necessary  or  expedient  to 
assign  to  him  or  them,  subject  to  any  limitations  or  directions  expressed  or 
given  by  the  Queen ;  but  the  appointment  of  such  a  deputy  or  deputies, 
shall  not  affect  the  exercise  by  the  governor-general  himself  of  any  power, 
authority  or  function. 

15.  The  command-in-chief  of  the  land  and  naval  militia,  and  of  all  naval 
and  military  forces,  of  and  in  Canada,  is  hereby  declared  to  continue  and 
be  vested  in  the  Queen. 

^  Hearn's  Government  of  England,  p.  133. 


l'\  I 


80 


Federal  Government  in  Canada. 


[636 


from  his  official  chief,  the  secretary  of  state  for  the  colonies, 
even  if  it  be  a  matter  not  immediately  involving  imperial 
interests.  For  instance,  when  a  question  arose  in  1879 
whether  the  governor-general  ought  to  follow  the  advice  of  his 
council  and  dismiss  the  lieutenant-governor  of  Quebec,  Lord 
Lome,  at  the  suggestion  of  the  premier,  referred  the  whole 
matter  to  her  majesty's  government  for  its  consideration  and 
instructions,  as  it  involved  important  questions  connected  with 
the  relations  between  the  dominion  and  the  local  government^ 
as  well  as  the  proper  construction  to  be  put  on  the  constitu- 
tion.^ This  case,  however,  shows  that  the  government  of 
England,  in  accordance  with  their  fixed  policy,  will  refrain 
from  expressing  any  opinion  upon  the  merits  of  a  case  of  a 
purely  Canadian  interest,  and  will  not  interfere  with  the  exer- 
cise of  the  undoubted  powers  conferred  upon  the  governor- 
general  by  the  British  North  America  Act,  for  determining 
the  same.  Indeed  we  may  even  go  further  and  say  that  the 
eflFect  of  the  advice  of  the  imperial  government  in  this  partic- 


'  I  refer  here  to  a  remarkable  episode  in  the  political  history  of  Canada, 
(1878-1879)  in  which  we  find  abundant  evidence  of  the  bitterness  of  party 
Conflict  in  Canada.  M.  Letellier  de  St.  Just  was  appointed  lieutenant-gov- 
ernor of  Quebec  by  a  Liberal  administration  at  Ottawa,  and  thought  proper 
to  dismiss  his  executive  council,  though  it  had  a  large  majority  in  the  leg- 
islature. The  constitutionality  of  his  action  was  at  once  sharply  attacked 
in  the  dominion  parliament  by  the  Conservative  party  which  was  politi- 
cally identified  with  the  dismissed  ministers,  but  it  was  only  in  the  senate 
where  it  had  a  majo'^ty  that  a  resolution  was  passed  censuring  him  for  an 
act  emphatically  declared  to  be  at  variance  with  the  principles  of  responsi- 
ble government.  The  conservatives  soon  afterwards  came  into  power  and  a 
similar  resolution  was  again  proposed  and  passed  by  a  very  large  majority. 
The  government,  who  had  not  up  to  that  time,  tl:ci!£fht  it  incumbent  on 
them  to  assume  any  responsibility  under  section  59  of  B.  N.  A.  Act  which 
gave  them  the  power  of  dismissal,  then  recommended  to  Lord  Lome  that 
the  lieutenant-governor  be  dismissed ;  but  the  governor-genv.ral,  as  stated  in 
the  text,  hesitated  to  accept  the  advice  and  preferred  to  ask  instructions  from 
the  imperial  authorities.  In  consequence  of  their  answer,  he  had  no  other 
alternative  ^°  to  consent  to  the  removal  of  M.  Letellier  on  the  ground  as 
set  forth  ' :  ^6  '^rder  in  council,  that  his  usefulness  was  gone.  The  cause 
assigned  had  not  quite  the  merit  of  novelty,  for  siiuilar  language  had  been 


can 


637] 


Federal  Government  in  Canada. 


81 


ular  matter  must  be  to  restrain  within  very  narrow  limits  the 
occasions  when  a  governor  will  hereafter  h&sitate  to  accept  the 
advice  of  his  constitutional  advisers,  and  refer  to  England  a 
question  which  is  clearly  among  the  powers  belonging  to  the 
Canadian  government.  In  matters  affecting  imperial  interests, 
of  course  the  governor-general  is  not  confined  by  any  such 
limitation  ;  but  it  is  impossible  to  lay  down  any  rule  available 
for  such  emergencies.  The  truth  is,  as  it  has  been  well  ob- 
served by  a  Canadian  statesman  and  constitutionalist  ^  whose 
opinions  are  deserving  of  the  highest  possible  respect,  "  that 
imperial  int<irests  are,  under  our  present  system  of  government, 
to  be  secured  in  matters  of  Canadian  executive  policy,  not  by 
any  clause  in  a  governor's  instructions  (which  would  be  prac- 
tically inoperative,  and  if  it  can  be  supposed  to  be  operative 
would  be  mischievous),  but  by  mutual  good  feeling  and  by 
proper  consideration  for  imperial  interests  on  the  ^a.H  of  her 
majesty's  Canadian  advisers ;  the  crown  necessarily  retaining 
all  its  constitutional  rights  and  powers  which  would  be  exer- 
cisable in  any  emergency  in  which  the  indicated  securities 


used  in  the  case  of  Governor  Darling  who  was  dismissed  from  the  governor- 
ship of  Victoria  by  the  imperial  government  because  he  "  had  placed  him- 
self in  a  position  of  personal  antagonism  towards  almost  all  those  whose 
antecedents  pointed  them  out  as  most  likely  to  be  available  in  case  of  a 
change  of  ministry."  Governor  Darling's  mistake,  however,  was  not  in  dis- 
missing his  ministry,  but  in  yielding  to  its  pressure  and  consenting  to  the 
clearly  unconstitutional  course  of  sanctioning  the  levy  of  duties  on  a  mere 
resolution  of  the  assembly  at  the  time  in  antagonism  to  the  council.  (See 
Engl.  Cvmmons  Pap.,  1866,  vol.  L.,  p.  695.)  M.  Letellier,  it  may  be 
added,  obtained  the  assistance  of  a  new  council,  which  assumed  the  respon- 
sibility of  his  acts,  and  appealed  to  the  people,  who  sustained  them  by  a 
bare  majority,  which  soon  disappeared,  until  the  party  with  which  Mr. 
Letellier  had  brought  himself  into  conflict  came  again  into  office,  but  not 
until  after  he  had  been  dismissed.  The  consequences  of  this  affair  were 
serious,  not  only  in  creating  a  violent  agitation  for  a  long  while  but  in  the 
effect  upon  the  unfortunate  principal  actor,  who  felt  his  position  most 
keenly,  and  soon  afterwards  died. 

'  The  Hon.  Edward  Blake  in  a  dispatch  to  the  Secretarv  of  State,  Can. 
Ses^.  P.  1887,  No.  13. 


!■■ 


82 


Federal  Oovemment  in  Canada. 


[538 


might  be  found  to  fail."  The  official  communications  between 
the  imperial  government  and  the  governor-general  that  have 
been  printed  since  1867  and  indeed  from  the  days  of  Lord 
Elgin,  show  two  thi  ;^s  very  clearly :  First,  that  the  governors- 
general  now  fully  recognize  the  obligation  resting  upon  them 
of  following  in  their  entirety  the  principles  of  English  consti- 
tutional government  in  all  their  relations  with  their  cabinet 
affecting  matters  within  its  functions  and  authority  ;  secondly, 
that  the  imperial  government  never  intrude  their  instructions 
on  the  governor-general  in  such  matters,  and  while  they  do 
not  directly  deprecate  a  reference  to  them  for  advice  respecting 
questions  even  within  Canadian  jurisdiction,  yet  they  do  not 
encourage  it  but  prefer  that  Canadians  should  settle  all  such 
questions  for  themselves,  as  the  logical  sequence  of  a  very 
complete  system  of  local  government  long  since  granted  to  the 
dominion  by  the  parent  state. 

It  will,  therefore,  l)e  evident  that  power  is  practically  vested 
in  the  ministry  and  that  the  governor-general,  unless  he  has 
to  deal  with  imperial  questions,  can  constitutionally  perform 
no  executive  function  except  under  the  responsibility  of  that 
ministry.  The  royal  prerogative  of  mercy  is  no  longer  exer- 
cised on  his  own  judgment  and  responsibility,  but  is  adminis- 
tiered  as  it  is  in  England,  pursuant  to  the  advice  of  the  min- 
istry.' With  respect  to  the  allowance  or  disallowance  of 
provincial  acts,  ever  since  the  coming  into  force  of  the  British 
North  America  Act,  the  governor-general  "  has  invariably 
decided  on  the  advice  of  his  ministers  and  has  never  asserted 
a  right  to  decide  otherwise.  He  has  been  always  con- 
tent to  exercise  this  prerogative  under  the  same  cf)nstitu- 
tional  limitations  and  restraints  which  apply  to  all  other 
acts  of  executive  authority  in  a  constitutional  government."' 

'  In  the  resolutions  of  the  Qiiobec  convention,  the  prerogative  of  pardon 
was  to  be  exercised  by  the  lieutenant-governors  of  the  provinces;  but  in 
the  British  North  America  Act  this  important  power  is  entrusted  only  to 
the  governor-general  as  the  direct  representative  of  the  Queen. 

'  Todd's  Pari.  Gov't,  of  the  Colonies,  p.  342. 


539] 


Federal  Oovemment  in  Canada. 


83 


Even  in  the  exercise  of  the  all  important  prerogative  of 
dissolution,  which  essentially  rests  in  the  Crown,  he  acts  on 
the  advice  of  his  advisers,  and  it  is  obvious  from  many  exam- 
ples in  the  recent  political  history  of  Canada  he  does  not 
hesitate  to  follow  that  advice  as  a  rule.'  Of  course  it  may 
be  said  that  the  more  frequent  are  the  opportunities  given 
to  the  people  to  express  their  opinions  on  the  policy  of  a 
government,  the  greater  is  the  security  granted  to  popular 
liberty,  and  the  more  likely  is  parliament  to  represent  public 
sentiment.  In  1882  ])arliament  had  been  only  four  years  in 
session  and  Lord  Lome  accepted  the  advice  of  his  council  to 
dissolve  parliament,  but  there  were  certainly  good  reasons  for 
such  a  course  at  that  time,  since  there  had  been  a  readjust- 
ment in  the  representation  of  the  House,  as  a  consequence  of 
the  new  census  taken  in  1881,  and  the  national  or  protective 
policy  had  been  less  than  three  years  in  operation  and  the  ear- 
liest opportunity  should  be  given  to  obtain  thereon  the  verdict 
of  the  people.  The  difficulties  that  surround  a  governor-gen- 
eral in  such  cases,  when  there  is  a  powerful  party  in  power, 
are  very  obvious,  especially  when  we  consider  that  he  is  hardly 
likely  to  meet  with  support  from  his  official  superiors  in  Eng- 
land in  a  matter  which  they  would  consider  of  purely  Cana- 
dian importance.  Such  facts  obviously  are  the  natural  outcome 
of  parliamentary  government,  though,  in  the  opinion  of  some 
thoughtful  publicists,  they  raise  the  question  whether  a  gov- 
ernor-general, as  well  as  the  sovereign  whom  he  represents, 
might  not  be  called  upon  in  some  cases  to  refuse  t(j  be  bound 


*  Doubt  has  been  cast  upon  the  constitutional  propriety  of  the  course  pur- 
sued in  1887,  when  the  governor-general  allowed  the  premier  to  appeal  to 
the  people,  though  parliament  had  only  held  four  sessions  and  had  not 
completed  its  constitutional  existence  of  five  years  from  the  date  of  the 
return  of  the  writs  in  1882.  The  government  of  the  day  had  a  large  ma- 
jority in  the  popular  branch.  I  cite  this  case  simply  to  illustrate  the  extent 
to  which  the  governor-general,  as  astute  as  he  was  able,  thought  himself 
constitutionally  bound  to  follow  the  advice  of  his  ministry  in  view  of  all 
the  reasons  submitted  to  him,  and  of  which,  no  doubt,  we  have  not  yet  full 
knowledge. 


84 


Federal  Government  in  Canada. 


[540 


by  such  advice,  and  to  consider  whether  it  is  party  ambition 
or  the  public  interest  that  is  at  stake.  I  need,  however,  hardly 
add  that  the  representative  of  the  crown  must  be  prepared  to 
see  his  action  in  such  a  grave  exercise  of  the  prerogative  fully 
justified  by  another  set  of  advisers  in  case  he  finds  himself  in 
irreconcilable  conflict  with  those  who  give  him  advice  which 
he  cannot  bring  himself  to  follow  after  a  thorough  considera- 
tion of  all  the  facts  as  they  have  been  presented  to  him.  Hap- 
pily the  relations  that  exist  between  the  Queen's  representa- 
tive and  her  council  are  not  likely  to  be  strained  while  both 
fully  appreiciate  their  respective  functions  and  follow  those 
principles  of  action  which  experience  and  usage  have  shown 
to  be  necessary  to  prevent  undue  friction  and  difficulty.  It  is 
the  duty  of  the  council,  through  their  premier,  to  instruct  the 
governor-general  thoroughly  on  all  questions  that  are  matters 
of  executive  action,  and  to  keep  him  informed  on  any  matter 
that  should  properly  come  under  his  cognizance.  Mutual 
consultation  can  do  everything  to  bring  councillors  of  the 
crown  into  perfect  harmony  with  their  constitutional  head ; 
and  the  circumstances  must  be  very  peculiar  and  extraordinary 
indeed  when  a  conflict  can  arise  between  these  authorities  that 
is  not  susceptible  of  an  amicable  arrangement  at  last. 

Occupying  a  position  of  unswerving  neutrality  between 
opposing  political  parties,  and  having  no  possible  object  in 
view  except  to  subserve  the  usefulness  and  dignity  of  his  high 
office,  the  governor-general  must  necessarily,  in  the  discharge 
of  his  important  functions,  have  many  opportunities  of  pro- 
moting the  interests  of  the  country  over  whose  government  he 
presides.  While  he  continues  to  be  drawn  from  the  ranks  of 
distinguished  Englishmen,  he  evokes  respect  as  a  link  of  con- 
nection between  the  parent  state  and  its  dependency.  In  the 
peribrmance  of  his  social  duties  he  is  brought  into  contact 
with  all  shades  of  opinion  and  wields  an  influence  that  may 
elevate  social  life  and  soften  the  asperities  of  public  contro- 
versy by  bringing  public  men  to  meet  on  a  neutral  ground 
and  under  conditions  which  win  their  respect.     In  the  tours 


641] 


Federal  GovetTimerU  in  Canada. 


86 


he  takes  from  time  to  time  throughout  the  wide  territories  of 
the  dominion  he  is  able  to  make  himself  acquainted  with  all 
classes  and  interests,  and  by  the  information  he  gathers  in  this 
way  of  the  resources  of  the  country  he  can  make  himself  an 
important  agent  in  the  development  of  Canada.*  In  the  en- 
couragement of  science,  art  and  literature  he  has  also  a  fruitful 
field  in  which  he  may  perform  invaluable  service  that  would 
not  be  possible  for  anyone  who  does  not  occupy  so  exalted  a 
position  in  the  country.^ 

The  British  North  America  Act  of  1867  provides  that  the 
council,  which  aids  and  advises  the  governor-general,  shall  be 
styled  the  "queen's  privy  council  for  Canada."'  Here  we  have 
one  of  the  many  illustrations  that  the  constitutional  system  of 
the  dominion  offers  of  the  efforts  of  its  authors  to  perpetuate 
as  far  as  possible  in  this  country  the  names  and  attributes  of 
the  time-honored  institutions  of  England.  The  privy  council 
of  Canada  recalls  that  ancient  council  whose  history  is  always 
associated  with  that  of  the  king  as  far  back  as  the  earliest  days 
of  which  we  have  authentic  record.  Sometimes  it  was  known 
as  the  aula  regia  or  the  curia  regis,  which  possessed  ill-defined 
but  certainly  large  legislative  and  judicial  as  well  as  executive 
powers ;  but  its  principal  duty,  it  is  clear,  was  to  act  as  an 
advisory  body  according  as  the  king  might  wish  its  counsel. 
At  all  times  in  English  history  there  appears  to  have  been  a 
council  near  the  king  who  could  assist  him  v/ith  their  advice 
and  be  made  responsible  for  his  acts.*    Too  often  it  became 


>  M 


^  Lord  Dufferin's  public  speeches  during  his  administration  in  Canada 
directed  large  attention  in  Europe  to  the  remarkable  capabilities  of  Canada. 

*  During  the  regime  of  the  Marquis  of  Lome  and  H.  R.  H.  the  Princess 
Louise,  the  rojal  academy  of  arts  and  the  royal  society  of  Can?  'a  were 
established  on  a  successful  basis. 

'  The  executive  council  of  the  little  state  of  Delaware  was  originally  called 
the  privy  council — the  only  example  we  have  of  such  a  title  in  the  old 
colonies. 

* "  It  is  our  good  fortune  to  be  the  inheritors  of  institutions  in  which  the 
spirit  of  freedom  was  enshrined  and  to  have  had  forefathers  who  knew  how 
to  defend  them.    The  king  of  England  was  a  rex  politieua,  a  political  crea- 


86 


Federal  Government  in  Canada. 


[642 


the  unscrupulous  instrument  of  the  sovereign,  and  by  the  time 
of  Elizabeth  it  had  practically  supersede*!  the  parliament, 
except  when  money  had  to  be  raised  by  the  taxation  of  the 
people.  But  with  the  end  of  the  Tudor  dynasty,  its  power 
began  to  wane  and  the  parliament  increased  in  strength  and 
influence.  The  Stuarts  made  use  of  it  to  establish  a  secret 
star  chamber  to  usurp  the  functions  of  the  courts,  and  we  hear 
later  of  the  formation  of  a  committee  called  enviously  a  cabal 
or  c»biuet,  on  account  of  the  king  finding  it  convenient  from 
time  to  time  to  have  a  small  body  of  advisers  on  whose  ability 
to  serve  him  he  could  have  every  confidence,  and  in  whose 
deliberations  he  could  find  that  secrecy  which  would  not  have 
been  possible  in  the  consultations  of  the  privy  council  as  a 
whole.  In  the  course  of  the  various  changes  that  have  oc- 
curred in  English  constitutional  history  its  judicial  functions 
disappeared  and  now  only  survive  in  the  judicial  committee, 
while  it  has  been  practically  denuded  of  all  former  executive 
functions,  and  exists  only  as  a  purely  honorary  and  dig- 
nified body.  The  cabinet  council — a  name  originating  in  the 
days  of  Charles  I — is  now  the  great  executive  and  adminis- 
trative council  of  state,  though  in  no  other  respect  does  it 
referable  that  irresponsible  creation  of  the  Stuart  king.  Still 
the  cabinet  which  is  the  governing  power  of  the  ministry  of 
modern  times,  is  a  name  unknown  to  the  law.  The  privy 
council  is  the  only  body  legally  recognized,  and  on  the  for- 
mation of  a  new  ministry  it  is  usual  to  inform  the  public 
simply  that  her  majesty  has  been  pleased  to  appoint  certain 
members  of  the  privy  council  to  certain  high  offices  of  state. 
The  cabinet,  or  inner  council,  is  only  a  portion  of  the  ministry 


tion,  l;he  highest  functionary  and  servant  of  the  state,  not  a  merely  personal 
ruler,  tinrl  that  was  his  recognized  capacity.  In  the  next  place,  from  early 
times,  earlier  than  the  beginning  of  regular  parliaments,  the  people  of 
England  held  a  firm  hold  on  the  idea  of  ministerial  responsibility.  They 
acted  upon  it  fitfully  and  sometimes  capriciously,  but  they  never  let  it  go. 
If  the  king  ruled  ill,  it  was  because  he  had  bad  advisers."  Contemporary 
Beview,  January,  1889,  p.  53. 


643] 


Federal  Government  in  Ckmada. 


87 


and  varies  in  numbers  according  to  the  exipjencies  of  state. 
This  ministry  is  drawn  from  members  of  the  two  iioiises  of 
parliament,  chiefly  from  the  house  of  commons,  and  their 
tenure  of  office;  d(!pends  upon  their  having  and  retaining  the 
confi<ien<!e  of  a  majority  of  the  people's  house,  in  a<«ordunce 
with  the  ])rineiples  of  parliamentary  government,  which  were 
first  roughly  laid  down  after  the  revolution  of  1688,  though 
it  tf)ok  very  many  years  before  the  present  system  of  ministe- 
rial responsibility  rea(;hed  its  present  perfection. 

The  terms,  "cjibinet,"  "ministry,"  "administration"  and 
"  government,"  are  indifferently  a])plied  to  the  privy  council 
of  Canada ;  for  there  is  not  in  this  country  a  sel(;ct  cabinet  as 
in  the  parent  state.  Privy  councillors,  when  not  in  the  gov- 
ernment, retain  their  lionorary  rank,  but  it  is  simply  one  that 
entitles  them  to  certain  precedence  on  state  occasions  and  has 
no  official  responsibility  or  meaning.  When  the  governor- 
general  appoints  a  bwly  of  advisers  to  assist  him  in  the 
government  he  calls  them  to  V)e  mendjers  of  the  privy  council 
and  to  hold  certain  offices  of  state.  It  sometimes  happens, 
however,  that  ministers  are  appointed  without  a  .portfolio  or 
department,  and  two  representatives  of  the  government  in  the 
senate  are  in  that  position  at  the  present  time.  The  number 
of  members  of  the  ministry  or  privy  council  in  office  vary 
from  thirteen  to  fifteen  of  whom  thirteen  are  heads  of  depart- 
mentu,  whose  functions  are  regulated  by  statute.  One  of 
these  officers,  however,  is  president  of  the  privy  council,  who 
has  practically  no  departmental  iluties,  but  it  is  a  position 
which  the  premier,  as  it  happens  at  the  present  time,  may  well 
occupy  in  view  of  his  large  political  responsibilities  as  the  head 
of  the  government.  While  holding  this  virtually  honorary 
offi(!e,  he  is  often  called  upon  to  act  for  ministers  who  are  ill 
or  absent  from  the  country,  and  it  is  found  convenient  to  con- 
nect with  it  the  charge  of  the  virtually  subordinate  department 
of  Indian  affairs.*     The  other  ministers  with  portfolios  are  the 


'  Sir  John  Macdonald  was  president  of  the  council  and  superintendent 
general  [of  Indian  affairs,  an  office  generally  held  by  the  minister  of  the 


88 


Federal  Government  in  Canada, 


[544 


11 


It 


.^1 


m 


II 


minister  of  finance,  minister  of  public  works,  minister  of  rail- 
ways and  canals,  minister  of  the  interior,  postmaster-general, 
minister  of  justice,  secretary  of  state,  minister  of  inland  reve- 
nue, minister  of  customs,  minister  of  militia,  minister  of 
marine  and  fisheries,  and  minister  of  agriculture.  When  we 
consider  the  population  of  Canada  and  its  position  as  a  colo- 
nial dependency  this  ministry  of  thirteen  departments  (exclu- 
sive of  the  two  at  present  without  portfolios)  seems  extremely 
large  compared  with  the  government  of  the  United  States  or 
of  England  itself.  At  the  inception  of  confederation  it  was 
considered  advisable  to  have  all  sections  of  the  confederation 
fully  represented,  and  the  practice  has  ever  since  been  to 
maintain  the  proportion  from  the  maritime  provinces,  Ontario 
and  Quebec.  In  1889  the  exceptional  position  of  the  north- 
west was  for  the  first  time  considered  by  appointing  the  ex- 
lieutenant-governor  of  the  territories  to  the  oifice  of  minister  of 
the  interior,  who  has  special  charge  of  the  affairs  of  that  wide 
region.  It  has  been  sometimes  urged  that  it  would  have  been 
wise  had  it  been  possible  in  1867  to  follow  the  English  prac- 
tice and  appoint  a  certain  number  of  political  under-secretaries 
with  seats  in  the  lower  house.  In  this  way  the  necessity  for 
so  large  a  cabinet  might  have  been  obviated,  and  an  opportu- 
nity given  to  train  men  for  a  higher  position  in  the  councils  of 
the  country.  A  step  was  taken  in  this  direction  in  1887  but 
the  law  so  far  has  remained  a  dead  letter  on  the  statute  book.^ 
As  the  members  of  a  cabinet  only  occupy  office  while  they 
retain  the  confidence  of  the  lower  house,  the  majority  necessa- 
rily sit  in  that  body,  though  there  is  always  a  certain  repre- 
sentation (two  at  the  present  time)  in  the  upper  branch.  Since 
the  commons  hold  the  purse  strings,  and  directly  represent  the 
people,  all  the  most  important  departments,  especially  of 
finance  and  revenue,  must  necessarily  be  represented  in  that 


interior.     He  acted  also  for  Mr.  Pope,  minister  of  railways,  while  suffering 
from  illness  ending  in  death  during  the  past  session  of  parliament. 
>  Remarks  of  Sir  John  Macdonald,  Can.  Hansard,  1887,  pp.  862,  863. 


645] 


Federal  Government  in  Canada. 


89 


branch.     The  ministry,  then,  is  practically  a  committee  of  the 
two  houses.     Its  head  is  known  as  the  premier  or  prime  min- 
ister, who,  as  the  leader  of  a  political  party,  and  from  his 
commanding  influence  and  ability,  is  in  a  position  to  lead  the 
house  of  commons  and  control  the  government  of  the  country. 
His  title,  however,  is  one  unknown  to  the  law,  though  bor- 
rowed from  the  English  political  system.     It  originates  from 
the  fact  that  he  is  first  called  upon  by  the  sovereign  (or  in 
Canada  by   her   representative)  to   form   a   ministry.     The 
moment  he  is  entrusted  with  this  high  responsibility  it  is  for 
him  to  choose  such  members  of  his  pjlrty  as  are  likely  to 
bring  strength  to  the  government  as  a  political   body,  and 
capacity  to  the  administration  of  public  affairs.     The  gover- 
nor-general on  his  recommendation  appoints  these  men  to  the 
ministry  and  the  occasions  that  can  arise  when  he  may  see 
reasons  for  objecting  to  a  particular  nominee  are  so  exceptional 
— indeed  we  have  no  case  in  our  recent  history — that  we  may 
practically  consider  the  choice  of  colleagues  by  the  premier  as 
final   and   conclusive.     As  a  rule,  on  all  matters  of  public 
policy  the  communications  between  the  cabinet  and  governor 
take  place  through  the  premier,  its  official  head.     If  he  dies 
or  resigns  the  cabinet  is  ex-ojficio  dissolved,  and  the  ministers 
can  only  hold  office  until  a  new  premier  is  called  to  the  public 
councils  by  the  representative  of  the  crown.     It  is  for  the  new 
premier  then  to  ask  them  to  remain  in  office,  or  to  accept  their 
resignation.     In  case  a  government  is  defeated  in  parliament, 
the  premier  must  either  resign  or  else  convince  the  governor- 
general  that  he  is  entitled  lo  a  dissolution  on  the  ground  that 
the  vote  of  censure  does  not  represent  the  sentiment  of  the 
country.     This  is  one  of  the  occasions  when  the  governor-gen- 
eral is  called  upon  to  exercise  an  important  prerogative  of  the 
crown  in  circumstances  of  great  delicacy ;  but  fortunately  for 
him  the  principles  that  have  been  laid  down  in  the  course  of 
many  years  in  the  working  of  the  British  system  in  England 
and  her  dependencies  can  hardly  fail  to  enable  him,  after  a 
full  consideration  of  all  the  circumstances  of  the  case  before 
7 


90 


Federal  Government  in  Canada. 


[646 


il  !1 


II 

;M  t 


M 


l^li 


him,  to  come  to  a  conclusion  that  will  satisfactorily  meet  the 
exigency.  If  the  circumstances  are  such  as  to  justify  a  disso- 
lution of  parliament  the  premier  must  lose  no  time  in  obtain- 
ing an  expression  of  public  opinion ;  and  should  it  be 
apparently  in  his  favor  he  must-call  parliament  together  with 
as  little  delay  as  possible ;  or  if,  on  the  other  hand,  the  public 
sentiment  should  be  unequivocally  against  him  he  should 
resign  ;  for  this  course  has  been  followed  in  recent  times  both 
in  England  and  Canada.  Strictly  speaking,  parliament  alone 
should  decide  the  fate  of  the  ministry,  but  the  course  in  ques- 
tion is  obviously  becoming  one  of  the  conventional  rules  of  the 
constitution  likely  to  be  followed  whenever  there  is  a  decided 
majority  against  an  administration  at  the  polls. 

From  what  precedes  it  will  therefore  be  seen  that  while 
there  is  a  constitutional  separation  between  the  executive  and 
legislative  authorities,  still  it  may  be  said  that,  in  Canada  as  in 
England,  parliament  governs  through  an  executive  dependent 
on  it.  The  queen  is  at  once  the  head  of  the  executive  autho- 
rity and  the  first  branch  of  the  legislative  department.  The 
responsible  part  of  the  executive  authority  has  a  place  in  the 
legislative  department.  It  is  a  committee  of  the  legislature, 
nominally  appointed  by  the  queen's  representative,  but  really 
owing  its  position  as  a  government  to  the  majority  of  the  leg- 
islative authority.  This  executive  dependence  on  the  'jgis- 
lature  is  an  invaluable,  in  fact  the  fundamental  principle  of 
parliamentary  government.  This  council  thereby  becomes 
responsible  at  once  to  crown  and  parliament  for  all  questions 
of  public  policy  and  of  public  administration.  In  a  country 
like  ours  legislation  is  the  originating  force  and  the  represent- 
atives of  the  people  are  the  proper  ultimate  authority  in  all 
matters  of  government.  The  importance  then  of  having  the 
executive  authority  represented  in  parliament  and  immediately 
amenable  to  it  is  obvious.  Parliament  is  in  a  position  to  con- 
trol the  administration  of  the  executive  authority  by  having 
in  its  midst  men  who  can  explain  and  defend  every  act  that 
may  be  questioned,  who  can  lead  the  house  in  all  important 


547] 


Federal  Government  in  Canada, 


91 


matters  of  legislation/  and  who  can  be  censured  or  forced  from 
office  when  they  do  wrong  or  show  themselves  incapable  of 
conducting  public  affairs.  By  means  of  this  check  on  the 
executive,  efficiency  of  government  and  guarantees  for  the 
public  welfare  are  secured  beyond  question.  The  people  are 
able,  through  their  representatives,  to  bring  their  views  and 
opinions  to  bear  on  the  executive  immediately.  Every  branch 
of  the  public  service  may  be  closely  examined,  every  question- 
able transaction  siftefl,  and  every  information  obtained,  by  the 
methods  of  parliamentary  inquiry,  as  ministers  are  present  to 
answer  every  question  respecting  the  administration  of  their 
departments  and  to  justify  and  defend  their  public  policy. 
The  value  of  this  British  system  of  parliamentary  government 
can  be  best  understood  by  comparing  it  with  the  American 
system  which  so  completely  separates  the  executive  from  the 
legislature.  In  the  United  States  the  President  is  irremova- 
ble, except  in  case  of  a  successful  impeachment,  for  four  years, 
and  he  appoints  his  cabinet,  who  are  simply  heads  of  depart- 
ments responsible  to  no  one  except  himself.  This  cabinet  may 
be  well  compared  in  one  respect  to  the  cabinet  councils  of  the 
Stuarts,  since  like  them  its  existence  does  not  depend  on  the 
confidence  or  support  of  the  legislature.  Its  members  have  no 
seats  in  either  the  senate  or  house  of  representatives  and  are 
in  no  way  responsible  for,  or  exert  any  direct  influence  on 
public  legislation.  A  thoughtful  American  writer  *  comparing 
the  two  systems,  shows  very  clearly  how  inferior  in  many 
respects  it  is  to  that  of  England  or  of  Canada : — "  It  is  this 


^"It  is  therefore  the  executive  gOTernment  which  should  be  credited 
with  the  authorship  of  English  legislation.  We  have  thus  an  extraordi- 
nary result.  The  nation  whose  constitutional  practice  suggested  to  Mon- 
tesquieu his  memorable  maxim  concerning  the  executive,  legislative  and 
judicial  powers,  has  in  the  course  of  a  century  falsified  it.  The  formal 
executive  '.^  the  true  source  of  legislation ;  the  formal  legislature  is  inces- 
santly concerned  with  executive  government."  Sir  H.  Maine,  Essay  on 
the  ([Constitution  of  the  United  States,  Quarterly  Review,  No.  313. 

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constant  possibility  of  party  diversity  between  the  executive 
and  congress  which  so  much  complicates  our  system  of  gov- 
ernment. Party  government  can  exist  only  when  the  abso- 
lute control  of  administration,  the  appointment  of  its  officers 
as  well  as  the  direction  of  its  means  and  policy,  is  given 
immediately  into  the  hands  of  that  branch  of  government 
whose  power  is  paramount — the  representative  body.  .  .  . 
At  the  same  time  it  is  quite  evident  that  the  means  which 
congress  has  of  controlling  the  departments  and  of  exercising 
any  searching  oversight  at  which  it  aims  are  limited  and 
defective.  Its  intercourse  with  the  president  is  restricted  to 
the  executive  messages,  and  its  intercourse  with  the  depart- 
ments has  no  easier  channels  than  private  consultations  between 
executive  officers  and  the  committees,  informal  interviews  of 
the  ministers  with  individual  members  of  the  congress,  and 
the  written  correspondence  which  the  cabinet  officers  from 
time  to  time  address  to  the  presiding  officers  of  the  two 
houses  at  stated  intervals  or  in  response  to  formal  resolutions 
of  inquiry.  Congress  stands  almost  helpless  outside  of  the 
departments."  ^ 

*  Professor  Bryce  (The  American  Commonwealth,  I.,  p.  304)  expresses 
the  same  opinion  after  a  thorough  study  of  the  imperfections  and  weak- 
nesses of  the  American  system :  '  In  their  efforts  to  establish  a  balance  of 
power,  the  framers  of  the  constitution  so  far  succeeded  that  neither  power 
has  subjected  the  other.  But  they  underrated  the  inconveniences  which 
arise  from  the  disjunction  of  the  two  chief  organs  of  government.  They  re- 
lieved the  administration  from  a  duty  which  European  ministers  find  exhaus- 
ting and  hard  to  reconcile  with  the  proper  performance  of  administrative 
work, — the  duty  of  giving  attendance  in  the  legislature  and  taking  the  lead 
in  its  debates.  They  secured  continuity  of  executive  policy  for  four  years 
at  least,  instead  of  leaving  government  at  the  mercy  of  fluctuating  majori- 
ties in  an  excitable  assembly.  But  they  so  narrowed  the  sphere  of  the 
executive  as  to  prevent  it  from  leading  the  country,  or  ev^n  its  own  party 
in  the  Coventry.  They  sought  to  make  members  of  congress  independent, 
but  in  so  doing  they  deprived  them  of  some  of  the  means  which  European 
legislatures  eqjoy  of  learning  how  to  administer,  of  learning  even  how  to 
legislate  on  administrative  topics.  They  condemned  them  to  be  architects 
without  science,  critics  without  experience,  censors  without  responsibility." 
See  also  De  Tecqueville,  I.,  p.  124. 


549] 


Federal  Government  in  Canada. 


93 


I  have  so  far  briefly  explained  some  of  the  constitutional 
duties  and  responsibilities  that  rest  upon  the  head  of  the  exec- 
utive and  his  advisers,  and  must  now  proceed  to  review  the 
nature  of  the  functions  of  the  senate  and  house  of  commons, 
who,  with  the  queen,  constitute  the  parliament  of  Canada.^ 


LEGISLATIVE  POWER. 

^  B.  N.  A.  Act,  1867,  sec.  17.  There  shall  be  one  parliament  for  Canada, 
consisting  of  the  queen,  an  upper  house  styled  the  senate,  and  the  house  of 
commons. 

18.  The  privileges,  immunities  and  powers  to  be  held,  enjoyed  and  exer- 
cised by  the  senate  and  by  the  house  of  commons  and  by  the  members 
thereof  respectively,  shall  be  such  as  are  from  time  to  time  defined  by  act 
of  the  parliament  of  Canada,  but  so  that  any  act  of  the  parliament  of  Canada 
defining  such  privileges,  immunities  and  powers  shall  not  confer  any  privi- 
leges, immunities  or  powers  exceeding  those  at  the  passing  of  such  act,  held, 
enjoyed  and  exercised  by  the  commons  house  of  parliament  of  the  United 
Kingdom  of  Great  Britain  and  Ireland  and  by  the  members  thereof. 

19.  The  parliament  of  Canada  shall  be  called  together  not  later  than  six 
months  after  the  union. 

20.  There  shall  be  a  session  of  the  parliament  of  Canada  once  at  least  in 
every  year,  so  that  twelve  months  shall  not  intervene  between  the  last  sit- 
ting of  the  parliament  in  one  session  and  its  first  sitting  in  the  next  session. 

The  Senate. 

21.  The  senate  shall,  subject  to  the  provisions  of  this  act,  consist  of  sev- 
enty-two members,  who  shall  be  styled  senators. 

22.  In  relation  to  the  constitution  of  the  senate,  Canada  shall  be  deemed 
to  consist  of  three  divisions — 

1.  Ontario; 

2.  Quebec; 

3.  The  Maritime  Provinces,  Nova  Scotia  and  New  Brunswick;  which 
three  divisions  shall  (subject  to  the  provisions  of  this  act)  be  equally  rep- 
resented in  the  senate  as  follows :  Ontario  by  twenty-four  senators ;  Quebec 
by  twenty-four  senators ;  and  the  Maritime  Provinces  by  twenty-four  sena- 
tors— twelve  thereof  representing  Nova  Scotia,  and  twelve  thereof  repre- 
senting New  Brunswick. 

In  the  case  of  Quebec  each  of  the  twenty-four  senators  rer.i  resenting  that 
province  shall  be  appointed  for  one  of  twenty-four  elector  il  -divisions  of 
Lower  Canada  specified  in  schedule  A  to  chapter  one  of  consolidated  stat- 
utes of  Canada. 

23.  The  qualifications  of  a  senator  shall  be  as  follows  — 
(1.)  He  shall  be  of  the  full  age  of  thirty  years. 


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In  all  countries  possessing  a  parliamentary  system,  and  espe- 
cially in  those  which  have  copied  their  institutions  from  the 
British  model,  an  upper  chamber  has  been  generally  considered 
a  necessary  part  of  the  legislative  machinery.  In  the  United 
States  the  necessity  of  having  such  a  check  upon  the  acts  of 
the  body  directly  representing  the  people,  was  recognized  from 
the  outset  in  the  constitution  of  the  congress  and  of  every 
state  legislature.  Two  hou3es  always  formed  part  of  the  pro- 
vincial legislatures  of  British  North  America  from  1791  until 
1867,  when  Ontario,  whose  example  has  been  followed  by 
other  provinces  of  the  confederation,  decided  to  confine  her 
legislature  to  an  elected  assembly  and  the  lieutenant-governor. 

(2.)  He  shall  be  either  a  natural-born  subject  of  the  queen,  or  a  subject 
of  the  queen,  naturalized  by  an  act  of  the  parliament  of  Great  Bri- 
tain, or  of  the  parliament  of  the  United  Kingdom  of  Great  Britain 
and  Ireland,  or  of  the  legislature  of  one  of  the  provinces  of  Upper 
Canada,  Lover  Canada,  Canada,  Nova  Scotia,  or  New  Brunswick, 
before  the  union  or  of  the  parliament  of  Canada  after  the  union. 

(3.)  He  shall  be  legally  or  equitably  seized  as  of  freehold  for  his  own  use 
and  benefit  of  lands  or  tenements  held  in  free  and  common  socage, 
or  seized  or  possessed  for  his  own  use  and  benefit  of  lands  or  tene- 
ments held  in  franc-alleu  or  in  roture,  within  the  province  for  which 
he  is  appointed,  of  the  value  of  four  thousand  dollars,  over  and  above 
all  rents,  dues,  debts,  charges,  mortgages  and  incumbrances  due  or 
payable  out  of,  or  charged  on  or  afiecting  the  same ; 

(4.)  His  real  and  personal  property  shall  be  together  worth  four  thousand 
dollars  over  his  debts  and  liabilities ; 

(5.)  He  shall  be  resident  in  the  province  for  which  he  is  appointed ; 

(6.)  In  the  case  of  Quebec,  he  shall  have  his  real  property  qualification 
in  the  electoral  division  for  Avhich  he  is  appointed,  or  shall  be  resi- 
dent in  that  division. 

24.  The  governor-general  shall  from  time  to  time,  in  the  queen's  name, 
by  instrument  under  the  great  seal  of  Canada,  summon  qualified  persons  to 
the  senate ;  and,  subject  to  the  provisions  of  this  act,  every  person  so  sum- 
moned shall  become  and  be  a  member  of  the  senate  and  a  senator. 

25.  Such  persons  shall  be  first  summoned  to  the  senate  as  the  queen  by 
warrant  under  her  majesty's  royal  sign  manual  thinks  fit  to  approve,  and 
their  names  shall  be  inserted  in  the  queen's  proclamation  of  union. 

26.  If  at  any  time,  on  the  recommendation  of  the  governor-general,  the 
queen  thinks  fit  to  direct  that  three  or  six  members  be  added  to  the  senate, 
the  governor-general  may,  by  summons  to  three  or  six  qualified  persons  (as 


551] 


Federal  Government  in  Cmmda. 


95 


The  upper  house  of  the  Canadian  parliament  bears  a  name 
which  goes  back  to  the  days  of  ancient  Rome,  and  also  invites 
comparison  with  the  distinguished  body  which  forms  so  im- 
portant a  part  of  the  American  congress ;  but  neither  in  its 
constitution  nor  in  its  influence  does  it  bear  auy  analogy  with 
those  great  assemblies.  An  eminent  authority  on  such  ques- 
tions, the  late  Sir  Henry  Maine,  has  very  truly  observed  that 
on  close  inspection  the  senates  of  the  ancient  world  will  be 
found  to  answer  very  slightly  to  the  conception  of  second 
chambers  of  a  legislature,  but  that  the  first  real  anticipation 
of  a  second  chamber,  armed  with  a  veto  on  the  proposals  of  a 
separate  authority,  and  representing  a  different  interest,  occurs 


the  case  may  be),  representing  equally  the  three  divisions  of  Canada,  add 
to  the  senate  accordingly. 

27.  In  case  of  such  addition  being  at  any  time  made,  the  governor-gen- 
eral shall  not  summon  any  person  to  the  senate,  except  on  a  further  like 
direction  by  the  queen  on  the  like  recommendation,  until  each  of  the  three 
divisions  of  Canada  is  represented  by  twenty -four  senators,  and  no  more. 

28.  The  number  of  senators  shall  not  at  any  time  exceed  seventy-eight. 

29.  A  senator  shall,  subject  to  the  provision  of  this  act,  hold  his  place  in 
the  senate  for  life. 

30.  A  senator  may,  by  writing  under  his  hand,  addressed  to  tl:e  gov- 
ernor-general, resign  his  place  in  the  senate,  and  thereupon  the  same  shall 
be  vacant. 

31.  The  place  of  a  senator  shall  become  vacant  in  any  of  the  following 
cases : — 

(1.)  If  for  two  consecutive  sessions  of  the  parliament  he  fails  to  give  his 
attendance  in  the  senate : 

(2.)  If  he  takes  an  oath  or  makes  a  declaration  or  acknowledgment  of 
allegi.".nce,  obedience  or  adherence  to  a  foreign  power,  or  does  an  act 
whereby  he  becomes  a  subject  or  citizen,  or  entitled  to  the  rights  or 
privileges  of  a  subject  or  citizen  of  a  foreign  power : 

(3.)  If  he  is  adjudged  bankrupt  or  insolvent,  or  applies  for  the  benefit  of 
any  law  relating  to  insolvent  debtors,  or  becomes  a  public  defaulter : 

(4.)  If  he  is  attainted  of  treason,  or  convicted  of  felony  or  of  any  infa- 
mous crime : 

(5.)  If  he  ceases  to  be  qualified  in  respect  of  property  or  of  residence : 
provided  that  a  senator  shall  not  be  deemed  to  have  ceased  to  be 
qualified  in  respect  of  residence  by  reason  only  of  his  residing  at  the 
seat  of  the  government  of  Canada  while  holding  an  office  under  that 
Government  requiring  his  presence  there. 


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in  that  much'misunderstood  institution,  the  Roman  tribunate.' 
Nor  does  the  Canadian  senate  compare  in  legislative  authority 
with  the  -A  merican  body  of  that  name.  The  first  is  nominated 
by  the  crown  for  life  and  has  limited  powers  even  of  legislation, 
since  it  cannot  initiate  or  even  amend  money  or  revenue  bills ; 
the  other,  which  is  elected  by  the  state  legislatures  for  a  limited 

32.  "When  a  vacancy  happens  in  the  nenate,  by  resignation,  deam  or 
otherwise,  the  governor-general  shall,  by  summons  to  a  fit  and  qualified 
person,  fill  the  vacancy. 

33.  If  any  question  arises  respecting  the  qualification  of  a  senator  or  a 
vacancy  in  the  senate,  the  same  shall  be  heard  and  determined  by  the 
senate. 

34.  The  governor-general  may  from  time  to  time,  by  instrument  under 
the  great  seal  of  Canada,  appoint  a  senator  to  be  speaker  of  the  senate,  and 
may  remove  him  and  appoint  another  in  his  stead. 

35.  Until  the  parliament  of  Canada  otherwise  provides,  the  presence  of 
at  least  fifteen  senators,  including  the  speaker,  shall  be  necessary  to  consti- 
tute a  meeting  of  the  senate  for  the  exercise  of  its  powers. 

36.  Questions  arising  in  the  senate  shall  be  decided  by  a  majority  of 
voices,  and  the  speaker  shall  in  all  cases  have  a  vote,  and  when  the  voices 
are  equal  the  decision  shall  be  deemed  to  be  in  the  negative. 

147.  In  case  of  the  admission  of  Newfoundland  and  Prince  Edward 
Island,  or  either  of  them,  each  shall  be  entitled  to  a  representation,  in  the 
senate  of  Canada,  of  four  members,  and  (notwithstanding  anything  in  this 
act)  in  case  of  the  admission  of  Newfoundland,  the  normal  number  of  sen- 
ators shall  be  seventy-six  and  their  maximum  number  shall  be  eighty-two ; 
but  Prince  Edward  Island,  when  admitted,  shall  be  deemed  to  be  com- 
prised in  the  third  of  the  three  divisions  into  which  Canada  is,  in  relation 
to  the  constitution  of  the  senate,  divided  by  this  act,  and  accordingly,  after 
the  admission  of  Prince  Edward  Island,  whether  Newfoundland  is  admitted 
or  not,  the  representation  of  Nova  Scotia  and  New  Brunswick  in  the  senate 
shall,  as  vacancies  occur,  be  reduced  from  twelve  to  ten  members  respec- 
tively, and  the  representation  of  each  of  those  provinces  shall  not  be  in- 
creased at  any  time  beyond  ten,  except  under  the  provisions  of  this  act,  for 
the  appointment  of  three  or  six  additional  senators  under  the  direction  of 
the  queen. 

1 "  The  Constitution  of  the  United  States,"  Quarterly  Review,  No.  313. 
Mr.  Goldwin  Smith  has  said  on  this  point :  "  The  illustrious  council  from 
which  the  name  of  Senate  is  derived  was  not  an  upper  house,  but  the  gov- 
ernment of  the  Boman  Republic,  having  the  executive  practically  under  its 
control  and  the  initiative  of  legislation  in  its  hands."  See  Doutre's  Consti- 
tution of  Canada,  p.  66. 


553] 


Federal  Government  in  Canada. 


97 


term,  has  a  veto  on  treaties  and  important  appointments  to 
office,  can  amend  appropriation  bills  so  as  to  increase  money 
grants  to  any  amount,  and  can  sit  as  a  court  of  impeachment. 
In  one  respect,  however,  the  senate  of  Canada  can  be  com- 
pared to  the  American  house ;  it  is  a  representative  of  the 
federal,  as  distinguished  from  the  popular  principle  of  repre- 
sentation. The  three  great  divisions  of  Canada,  the  Maritime 
Provinces,  Ontario  and  Quebec,  have  been  each  given  an 
equal  representation  of  twenty-four  members  with  a  view  of 
affording  a  special  protection  to  their  respective  interests — a 
protection  certainly  so  far  not  called  into  action  even  in  the 
most  ordinary  matters.  Since  1867  the  entrance  of  other 
provinces  and  the  division  of  the  territories  into  districts  has 
brought  the  number  of  senators  up  to  seventy-eight  in  all,  but 
at  no  time  can  the  maximum  number  exceed  eighty-four,  evein 
should  it  be  necessary  to  resort  to  the  constitutional  provision 
allowing  the  addition  of  three  or  six  new  members — a  position 
intended  to  meet  a  grave  emergency,  such  as  a  deadlock  in  a 
political  crisis.  The  senators  are  appointed  under  the  great 
seal  of  Canada  by  the  governor-general  on  the  recommendation 
of  his  council,  and  must  be  of  the  full  age  of  thirty  years,  and 
have  real  and  personal  property  worth  four  thousand  dollars 
over  and  above  their  liabilities.  The  experience  that  Canada 
had  of  the  working  of  an  elective  legislative  council  since 
1854  was  considered  in  the  convention  of  1864  to  be  such  as 
to  justify  the  delegates  in  preferring  a  nominated  body. 
The  great  expense  entailed  by  an  electoral  contest  in  the  large 
districts  into  which  the  province  was  divided  was  one  feature 
which  was  strongly  pointed  out  at  the  conference.^  It  was 
not  deemed  advisable  to  have  two  bodies  elected  by  the  people, 
since  the  danger  of  legislative  conflict  was  rendered  more 
imminent.  While  the  experience  of  Victoria  in  Australia 
certainly  seems  to  support  this  opinion,  the  history  of  the 
American  congress  might  be  considered  to  support  an  argu- 


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iti 


I 


ment  the  other  way.  The  object  of  the  framers  of  the  consti- 
tution has  been,  in  this  as  in  other  cases,  to  follow  the  model 
of  the  British  parliamentary  system  as  far  as  our  circumstances 
will  permit.  Hence  the  Louse  of  commons  can  alone  initiate 
revenue  or  money  bills,  and  the  senate  is  confined  by  usage  to 
a  mere  rejection  of  such  measures — a  rejection  justified  only  by 
extraordinary  circumstances.  In  every  respect  it  shows  the 
weakness  of  an  upper  house  under  the  British  system  and  none 
of  the  prestige  that  attaches  to  an  ancient  body  of  hereditary 
legislators  and  of  judicial  powers  as  a  court  of  appellate  juris- 
diction like  the  house  of  lords.  The  senate,  imitating  the 
lords,  tries  divorce  cases ;  ^  but  this  is  a  matter  of  convenience  to 
which  the  commons  agrees  without  objection,  since  under  the 
constitution  the  upper  house  has  no  special  privileges  in  this 
respect.  It  is  expressly  set  forth  in  the  British  North 
America  Act  that  the  powers  and  privileges  and  immunities  of 
the  senate  and  house  of  commons  cannot  at  any  time  exceed 
those  of  the  English  commons.  As  a  body  of  legislators  the 
senate  can  compare  favorably  with  any  assembly  in  Canada  or 
other  dependencies  of  England.  It  has  within  its  ranks  men 
of  fine  ability  and  large  experience  in  commerce,  finance  and 
law ;  and  its  weakness  seems  inherent  in  the  nature  of  its  con- 
stitution. The  system  of  the  nomination  by  the  crown — 
practically  by  the  government  of  the  day — tends  to  fill  it  with 
men  drawn  from  one  political  party  whenever  a  particular 
ministry  has  been  long  in  office  and  fails  to  give  it  that  pecu- 
liarly  representative  character  which  would  enlarge  its  useful- 
ness as  a  branch  of  the  legislature  and  give  it  more  influence 
in  the  country.  It  is  a  question  worth  considering  whether 
the  adoption  of  such  changes  as  would  make  it  partly  nomina- 
tive and  partly  elective  would  not  give  it  greater  weight  in 

'  In  Nova  Scotia,  New  Brunswick,  Prince  Edward  Island  and  British 
Columbia  the  courts  of  law  continue  to  try  divorce  cases,  as  before  1867,  and 
parliament  has  not  interfered  with  those  tribunals  under  the  power  con- 
ferred upon  it  by  the  fundamental  law.  See  Gemmili's  Parliamentary 
Divorce,  c.  4. 


555] 


Federal  Government  in  Canada. 


public  affairs.  For  instance,  if  the  provincial  legislatures  had 
the  right  of  electing  a  fixed  number  at  certain  intervals,  and 
the  universities  were  given  the  same  privilege,  the  effect  would 
be,  in  the  opinion  of  some  persons,  to  make  it  more  representa- 
tive of  provincial  interests,  and  at  the  same  time  add  to  its 
ranks  men  of  high  culture  and  learning.^ 

But  no  doubt  as  long  as  our  parliamentary  system  is  mod- 
elled on  the  English  lines,  an  upper  house  raust  more  or  less 
sink  into  inferiority  when  placed  alongside  of  a  popular 
house,  which  controls  the  treasury  and  decides  the  fate  of  ad- 
ministrations. It  is  in  the  commons  necessarily  that  the 
majority  of  the  ministers  sit  and  the  bulk  of  legislation  is  ini- 
tiated. In  1888  the  two  houses  passed  one  hundred  and 
eleven  bills  and  of  these  only  three  public  bills  and  five  pri- 
vate bills  originated  in  the  upper  house,  and  the  same  conditioi; 
of  things  has  existed  since  1867,  though  now  and  then,  as  in 
1889,  there  is  a  spasmodic  effort  to  introduce  a  few  more  gov- 
ernment bills  in  the  senate.  In  the  session  of  1888  twenty-six 
commons  bills  were  amended  out  of  the  one  hundred  and  three 
sent  up  to  the  upper  house,  and  the  majority  of  these  amend- 
ments were  verbal  and  unimportant.  Under  these  circum- 
stances it  may  well  be  urged  that  by  arrangement  between  the 
two  houses,  as  in  the  English  parliament,  a  larger  number  of 
private  bills  should  be  presented  in  the  senate,''  where  there  is 
a  considerable  rumber  of  gentlemen  whose  experience  and 
knowledge  entiJ.i  them  to  consider  banking  and  financial 
questions,  and   the  various  subjects  involved  in  legislation. 

'  In  the  Prussian  upper  house  the  universities  are  represented  and  the 
.owns  of  a  certain  number  of  inhabitants  by  their  mayors.  In  principle  it 
is  far  more  of  a  popular  assembly  than  the  English  house  of  lords.  See  an 
interesting  article  in  the  Nineteenth  Century  (vol.  XVI.,  No.  89)  on  the 
federal  states  of  the  world. 

*  As  I  have  already  shown,  divorce  bills  invariably  originate  in  the  senate, 
which  has  recently  adopted  an  amended  set  of  rules  under  the  able  super- 
vision of  Senator  Gowan,  and  the  select  committee  to  which  all  such  bills 
are  referred!  is  governed  by  the  rules  of  evidence  and  other  formalities  of  the 
courts  as  far  as  possible. 


100 


Federal  Government  in  Canada. 


[556 


For  reasons  already  given,  government  measures  must  as  a 
rule  be  introduced  in  the  commons,  but  still  even  in  this 
respect  there  might  be  an  extension  of  the  legislative  functions 
of  the  upper  chamber,  and  the  effort  made  in  1889  by  the  gov- 
ernment in  this  direction  ought  certainly  to  be  continued  until 
it  becomes  a  practice  and  not  a  mere  matter  of  temporary  con- 
venience. In  1887  there  were  only  ten  private  bills  presented 
iu  the  senate  out  of  the  seventy  that  passed  the  two  houses  j 
in  1888  the  figures  wert  five  out  of  sixty-seven,  and  the  same 
state  of  things  was  shown  in  1889.  The  majority  of 
these  bills  were  of  a  character  that  could  have  originated 
in  the  senate  with  a  regard  to  the  public  interests  and 
the  expedition  and  convenience  of  the  business  of  the  two 
houses.  From  time  to  time  the  senate  makes  amendments  that 
show  how  thoroughly  its  members  understand  and  are  compe- 
tent to  consider  certain  subjects;  and  the  sometimes  hasty 
legislation  of  the  commons — hasty  because  that  body  is  too 
often  overweighted  with  business — is  corrected  greatly  to  the 
advantage  of  the  country.  This  fact  alone  should  lead  to  a 
reform  in  the  direction  indicated. 

It  is  in  the  commons  house  that  political  power  rests.  As  I 
have  already  shown,  it  has  both  legislative  and  executive  func- 
tions, since  through  a  committee  of  its  own  it  governs  the  coun- 
try. Like  its  great  English  prototype  it  represents  the  people, 
and  gives  full  expression  to  the  opinions  of  all  classes  and  inter- 
ests, to  a  greater  degree  indeed  than  in  England  itself,  since  it 
is  elected  on  a  franchise  much  more  liberal  and  comprehensive. 
At  the  present  time  the  Canadian  house  of  commons  contains 
t  o  hundred  and  fifteen  members,  or  about  one  irember  for 
every  twenty  thousand  persons.  The  representation  is  rear- 
ranged every  decennial  census  by  act  of  parliament  in  accord- 
ance with  the  terms  of  the  constitutional  law.  The  French 
Canadian  province  has  a  fixed  number  of  sixty-five  members 
which  forms  the  ratio  of  representation  on  which '  a  decennial 


'  At  the  last  cenBus  the  population  of  Canada  was  given  as  4,382,810  per- 
sons ;  it  is  now  about  5,000,000. 


657] 


Federal  Oovemment  in  Canada. 


101 


readjustment  is  based.  Each  of  the  other  provinces  is  assigned 
such  a  number  as  will  leave  the  same  proportion  to  the  num- 
ber of  its  population  as  the  number  sixty-five  bears  to  the 
population  of  Quebec  when  ascertained  by  a  census.*  The 
o-reat  province  of  Ontario,  with  two  millions  of  people,  is  now 
represented  by  ninety-two  members,  or  fifty-eight  more  mem- 
bers than  the  state  of  New  York,  with  over  five  millions  of 
souls,  has  in  the  house  of  representatives.'*     Quebec  has,  as  just 


»  B.  N.  A.  Act,  1867. 

{The  Home  of  Commons.) 

*  Sec.  37.  The  house  of  commona  shall,  subject  to  the  provisions  of  this 
act,  consist  of  one  hundred  and  eighty-one  members,  of  whom  eighty-two 
shall  be  elected  for  Ontario,  sixty-five  for  Quebec,  nineteen  for  Nova  Scotia 
and  fifteen  for  New  Brunswick. 

38.  The  governor-general  shall  from  time  to  time,  in  the  queen's  name) 
by  instrument  under  the  great  seal  of  Canada,  summon  and  call  together 
the  house  of  commons. 

39.  A  senator  shall  not  be  capable  of  being  elected  or  of  sitting  or  voting 
as  a  member  of  the  house  of  commons. 

(Sections  40-43  refer  to  electoral  divisions  and  make  temporary  provi- 
sions for  elections.) 

44.  The  house  of  commons,  on  its  first  assembling  after  a  general  election, 
shall  proceed  with  all  practicable  speed  to  elect  one  of  its  members  to  be 
speaker. 

45.  In  case  of  a  vacancy  happening  in  the  office  of  speaker,  by  death, 
resignation  or  otherwise,  the  house  of  commons  shall,  with  all  practicable 
speed,  proceed  to  elect  another  of  its  members  to  be  speaker. 

46.  The  speaker  shall  preside  at  all  meetings  of  the  house  of  commons. 

47.  Until  the  parliament  of  Canada  otherwise  provides,  in  case  of  the 
absence,  for  any  reason,  of  the  speaker  from  the  chair  of  the  house  of  com- 
mons for  a  period  of  forty-eight  consecutive  hours,  the  house  may  elect 
another  of  its  members  to  act  as  speaker,  and  the  member  so  elected  shall, 
during  the  continuance  of  such  absence  of  the  speaker,  have  and  execute  all 
the  powers,  privileges  and  duties  of  speaker. 

48.  The  presence  of  at  least  twenty  members  of  the  house  of  commons 
shall  be  necessary  to  constitute  a  meeting  of  the  house  for  the  exercise 
of  its  powers ;  and  for  that  purpose  the  speaker  shall  be  reckoned  as  a 
member. 

49.  Questions  arising  in  the  house  of  commons  shall  be  decided  by  a 
majority  of  the  voices  other  than  that  of  the  speaker,  and  when  the  voices 
are  equal,  but  not  otherwise,  the  speaker  shall  have  a  vote. 


102 


Federal  Government  in  Canada. 


[668 


I'! 


stated,  sixty-five;  the  maritime  provinces,  foity -three;  and  the 
remaining  members  are  distributed  in  Manitoba,  British 
Cohimbia  and  the  territories.  Previous  to  1885  the  franchise 
for  the  several  provincial  legislatures  was  the  franchise  for  the 
house  of  commons ;  but  in  that  year  an  electoral  franchise  act 
was  passed  by  parliament  for  the  whole  dominion.  It  was 
contended,  after  the  most  protracted  debate  that  has  taken 
place  for  years  in  Canada  on  any  one  question,  that  this  radical 
change  was  not  justified  by  any  public  necessity,  and  was  sim- 
ply entailing  an  enormous  expense  on  the  treasury  without 
returning  any  corresponding  advantage  to  the  country.  It 
may  be  argued  with  truth  that  generally  in  a  federal  system  it 

50.  Every  house  of  commons  shall  continue  for  five  years  from  the  day  of 
the  return  of  the  writs  for  choosing  the  house  (subject  to  be  sooner  dissolved 
by  the  governor-general),  and  no  longer. 

51.  On  the  completion  of  the  census  in  the  year  one  thousand  eight  hun- 
dred and  seventy-one  and  of  each  subsequent  decennial  census,  the  repre- 
sentation of  the  four  provinces  shall  be  readjusted  by  such  authority,  in  such 
a  manner,  and  from  such  time  as  the  parliament  of  Canada  from  time  to 
time  provides,  subject  and  according  to  the  following  rules: — 

(1.)  Quebec  shall  have  the  fixed  aumber  of  sixty-five  members: 

(2.)  There  shall  be  assigned  to  each  of  the  other  provinces  such  a  number 
of  members  as  will  bear  the  same  proportion  to  the  number  of  its 
population  (ascertained  at  such  census)  as  the  number  sixty-five 
bears  to  the  number  of  the  population  of  Quebec  (so  ascertained) : 

(3.)  In  the  computation  of  the  number  of  members  for  a  province  a  frac- 
tional part  not  exceeding  one-half  of  the  whole  number  requisite  fur 
entitlin'?  the  province  to  a  member  shall  be  disregarded ;  but  a  frac- 
tional part  exceeding  one-half  of  that  number  shall  be  equivalent  to 
the  whole  number: 

(4.)  On  any  such  readjustment  the  number  of  members  for  a  province 
shall  not  be  reduced  unless  the  proportion  which  the  number  of  the 
population  of  the  province  bore  to  the  number  of  the  aggregate  pop- 
ulation of  Canada  at  the  then  last  preceding  readjustment  of  the 
number  of  members  for  the  province  is  ascertained  at  the  then  latest 
census  to  be  diminished  by  one-twentieth  part  or  upwards : 

(5.)  Such  readjustment  shall  not  take  efiect  until  the  termination  of  the 
then  existing  parliament. 

52.  The  number  of  members  of  the  house  of  commons  may  be  from  time 
to  time  increased  by  the  parliament  of  Canada,  provided  the  proportionate 
representation  of  the  provinces  prescribed  by  this  act  is  not  thereby  disturbed. 


~^^ 


559] 


Federal  Government  in  Canada, 


103 


is  desirable  to  use  whenever  practicable  all  the  institutions  of 
the  local  government  in  order  to  bring  the  centre  and  its 
members  into  as  perfect  harmony  as  possible  with  one  another. 
This  is  the  practice  in  the  United  States,  where  congress  is 
elected  on  the  franchises  of  the  several  states — a  system  which 
has  been  found  in  every  way  satisfactory.  However,  these 
and  other  arguments  against  the  change  were  considered  by  the 
majority  in  parliaraant  as  insufficient  compared  with  the  belief 
that  they  entertained  that  it  was  expedient  to  have  the  do- 
minion parliament  perfectly  independent  of  provincial  control. 
The  franchise,  though  somewhat  complicated  in  its  details,  is 
so  broad  as  practically  to  be  on  the  very  border  of  universal 
suffrage.  Every  intelligent,  industrious  man,  who  is  a  British 
subject  by  birth  or  naturalization  and  not  a  convict  or  insane 
or  otherwise  disqualified  by  law,  is  now  in  a  position  to  qualif^^ 
himself  to  vote  for  a  member  for  the  commons ;  even  the 
Indians  in  the  old  provinces  can  also  avail  themselves  of  the 
same  privilege  if  they  come  within  the  liberal  conditions  of 
the  act.  Members  of  the  house,  as  well  as  of  the  senate, 
receive  a  sessional  indemnity  of  ^1,000  in  case  the  session 
extends  beyond  -thirty  days,  and  an  allowance  of  ten  cents  a 
mile  for  travelling  expenses  ^  No  property  qualification  is  now 
demanded  from  a  member  of  the  commons  nor  is  he  limited  to 
a  residence  in  the  district  for  which  he  is  elected,  as  is  the  case 
in  the  United  States  by  law  or  usage ;  and  should  he  not  be 
able  to  obtain  a  seat  in  the  locality  or  even  in  the  province 
where  he  lives  be  can  be  returned  for  any  constituency  in  the 
dominion.  This  is  the  British  principle  which  tends  to  elevate 
the  representation  in  the  commons ;  for  while  as  a  rule  mem- 
bers are  generally  elected  for  their  own  district,  yet  occasions 
may  arise  when  the  country  would  for  some  time  lose  the 


*  In  the  colony  of  Victoria,  Australia,  where  salaries  are  much  higher 
than  in  Canada,  members  of  the  assembly  receive  $1,500  a  session,  and  after 
seven  years'  service  passes  over  railways. 


''-I 


"I 


104 


Federal  Qovemment  in  Canada. 


[560 


services  of  its  most  distinguished  statesmen,^  should  the  Amer- 
ican rule  prevail.  The  senators  in  Quebec,  in  view  of  the 
exceptional  position  of  that  province,  must  reside  in  their  own 
divisions  or  have  their  property  qualification  therein  ;  but 
while  the  constitutional  law  requires  that  in  the  case  of  the  other 
provinces  senators  must  reside  within  the  provincial  limits,  yet 
there  is  no  legal  necessity  that  they  should  live  in  a  particular 
county  or  district.  In  a  country  like  this,  with  many  legislative 
bodies,  demandinj^  the  highest  capacity,  it  would  be  unfortu- 
nate were  there  such  limitations  in  existence  as  it  is  admitted 
tend  in  the  United  States  to  prevent  the  employment  of  the 
highest  talent  in  the  public  service.'' 

The  house  of  commons  may  be  regarded  as  fairly  represen- 
tative of  all  classes  and  interests.  The  bar  predominates,  as  is 
generally  the  case  in  the  legislatures  of  this  continent ;  but  the 
medical  profession,  journalism,  mercantile  and  agricultural  pur- 
suits contribute  their  quota.  It  is  an  interesting  fact  that  a 
large  proportion  of  members  have  been  educated  in  the  uni- 
versities and  colleges  of  the  provinces,  and  this  is  especially 
true  of  the  representatives  from  French  Canada  where  there 
are  a  number  of  seminaries  or  colleges  w.hich  very  much 
resemble  the  collegiate  institutes  of  Ontario,  or  the  high 
schools  of  the  United  States,  where  a  superior  education,  only 
inferior  to  that  of  the  universities,  is  given  to  the  youth  of  the 
country.  Another  matter  worthy  of  mention  is  the  fact  that 
a  good  proportion  of  the  house  has  served  an  apprenticeship  in 
the  municipal  institutions  of  Ontario^not  a  few  of  the  leading 
men  having  been  wardens,  reeves,  or  mayors. 

Of  the  sixty-five  representatives  from  Quebec,  there  are 
fourteen  English-speaking  members,  chiefly  from  the  cities 
and  the  eastern  townships  where  a  British  population  is  still  in 


^  For  instance,  the  present  premier  (Sir  John  Macdonald)  when  he  lost 
his  seat  in  Kingston,  Ontario,  in  1878,  was  immediately  returned  for  a  con- 
stituency in  Manitoba,  and  subsequently  for  a  seat  in  British  Columbia. 

'  See  Professor  Bryce's  comments  on  this  point  in  the  American  Com- 
monwealth, I.,  p.  258. 


661] 


Federal  Ooverrtment  in  Canada. 


105 


the  majority.  In  Ontario,  moreover,  two  of  the  constituen- 
cies on  the  border  line  return  two  members  to  represent  the 
French  population  that  is  now  living  in  those  districts.  To 
this  number  we  must  add  another  representative  from  the 
largely  French  half-breed  constituency  of  Provencher  in 
Manitoba. 

As  a  matter  of  fact,  the  house  of  commons  comprises  many  • 
of  the  ablest  men  of  the  country  trained  in  law  and  poli- 
tics. In  this  respect  it  must  be  compared  rather  with  the 
senate  than  with  the  house  of  representatives  at  Washington. 
Rich  merchants  and  banlcers  do  not  as  a  rule  seek  seats  on  its 
-benches,  but  still  all  classes  of  business  find  their  representa- 
tives within  its  walls.  The  man  who  can  win  success  and 
influence  in  the  house  has  many  objects  of  ambition  to  reward 
him,  though  he  must  necessarily  sacrifice  the  many  opportuni- 
ties for  acquiring  large  wealth  that  oifer  themselves  to  those 
who  keep  aloof  from  active  politics.  The  executive  has  many 
prizes  in  its  gift  in  the  shape  of  lieutenant-governorships, 
judgeships,  coUectorships,  postmasterships,  and  many  places  in 
the  public  service  which  do  not  fall  within  the  provisions  of 
the  civil  service  act.  Thirteen  or  more  positions  in  the  privy 
council  are  in  view  of  an  ambitious  politician.  Then  there  is 
always  the  senate  as  a  place  of  dignity  when  other  plans  fail  of 
achievement.  The  cabinet  controls  the  public  expenditures, 
and  it  is  all-important  to  an  aspiring  politician  to  have  as 
much  money  as  possible  spent  in  his  constituency.  All  these 
influences  help  to  strengthen  the  executive  under  a  rigid  sys- 
tem of  party  government.  Party  lines  are  very  closely  drawn 
in  Canada,  and  the  occasions  are  very  rare  and  exceptional 
when  men  can  aflbrd  to  break  loose  from  the  trammels  that 
bind  them  to  a  certain  political  body  or  set  of  opinions.  In 
these  days  a  strong  executive  can  exercise  a  powerful  control 
over  its  supporters  in  a  legislature,  perhaps  more  so  than  in 
England  where  there  always  exists  an  independent  sentiment 
which  shows  itself  at  important  crises  in  and  out  of  parlia- 
ment.    The  danger  now-a-days  arises  not  from  the  encroach- 


n 


106 


Federal  Govemmerd  in  Canada. 


[562 


ment  of  the  royal  prerogative,  but  from  the  power  of  the 
responsible  executive  which,  nominally  dependent  on  the 
legislature,  can,  through  the  influences  of  party  government  and 
individual  ambition,  make  itself  the  master  for  the  time  b?ing 
as  long  as  it  has  a  strong  majority  in  parliament.  The 
caucus  ^  is  an  instrument  that  may  be  and  is  used  to  strengthen 
a  party.  The  strongest  ministry  does  not  pretend  to  deal 
with  important  questions  during  a  session  without  seeking  the 
advice  of  all  its  supporters  in  parliament  from  time  to  time. 
The  caucus  is  a  place  for  strong  speaking  at  crises  of  political 
excitement,  but,  with  careful  management,  party  considerations, 
as  a  rule,  prevail,  and  occasions  seldom  arise  when  it  breaks  up 
without  an  understanding  to  support  the  "  party  "  at  all  haz- 
ards. Dissolution  is  a  weapon  which  an  executive  can  always 
threaten  to  unsheathe,  and  recalcitrant  followers  may  prefer 
that  it  should  remain  as  long  as  possible  in  the  scabbard.  It 
is  better  perhaps  for  the  public  interest  that  the  government 
should  be  strong  than  that  it  should  be  Aveak ;  for  in  the 
former  case  it  can  spare  defections,  and  ran  afford  to  be  deter- 
mined in  a  political  crisis.  It  is  a  misfortune,  when,  as  in 
France,  there  are  numerous  political  cliques  and  sections, 
incessantly  warring  against  each  other  and  preventing  the 
establishment  of  stable  administrations. 

The  laws  enacted  for  the  preservation  of  the  independence 
of  parliament  and  the  prevention  of  corrupt  practices  at  elec- 
tions, are  in  principle  and  details  practically  those  in  operation 
in  the  mother  country.  The  former  law  derives  its  origin 
from  the  statute  of  Queen  Anne'*  which  established  the  valu- 
able principle  that  the  acceptance  by  a  member  of  the  house 


'  Both  government  and  opposition  hold  such  a  caucus  when  necessary. 
We  have  not  yet  reached  the  perfection  of  the  political  system  of  primaries, 
conventions  and  caucuses  in  the  United  States ;  but  conventions  are  now 
generally  held  in  the  different  electoral  districts  to  nominate  candidates  for 
the  legislature,  and  the.e  is  a  thorough  organization  of  the  two  partieii  pre- 
vious to  a  general  election. 

'  6  Anne,  c.  7,  sees.  25,  26. 


563] 


Federal  GovemmerU  in  Canada. 


107 


of  commons  of  an  office  of  emolument  from  the  crown,  shall 
thereby  vacate  his  seat.  Members  of  the  house  when  called 
to  the  government  as  heads  of  departments  must  at  once  resign 
their  seats  and  be  reelected,  though  an  exchange  of  offices  can 
take  plawi  betwo'  n  ministers  after  their  election  under  the  con- 
ditions laid  down  in  the  law.  All  officers  of  the  public  service 
and  contractors  /ith  the  government  are  forbidden  to  sit  in 
parliament — an  exception  being  made,  as  in  England,  of  officers 
in  the  military  service.  Since  1874  the  house  has  given  up  its 
jurisdiction  over  the  trial  of  controverted  elections,  which  pre- 
viously had  been  considered  by  committees  exposed  to  all  the 
insidious  influences  of  purely  political  bodies.  The  courts  in 
the  several  provinces  are  now  the  tribunals  for  the  trial  of  all 
such  contested  elections;  find  the  results  have  so  far  in 
Canada,  as  in  the  parent  state,  been  decidedly  in  the  public 
interests.  The  laws  for  the  prevention  of  bribery  and  cor- 
ruption are  exceedingly  strict;  and  members  are  constantly 
unseated  for  the  most  trivial  breaches  of  the  law,  committed 
by  their  agents  through  ignorance  or  carelessness.  The  expenses 
of  candidates  must  be  published  by  their  legal  agents  after 
the  election.  The  whole  intent  of  the  law  is  to  make  elec- 
tions as  economical  as  possible,  and  diminish  corruption.  A 
candidate  may  be  disqualified  from  sitting  in  the  commons, 
or  voting,  or  holding  any  office  in  the  gift  of  the  crown  for 
seven  years,  when  he  is  proved  personally  guilty  of  bribery, 
and  the  voters  in  a  constituency  may  be  also  severely  punished 
by  fine  and  imprisonment  when  corruption  is  proved  against 
them.  Yet  while  these  grievous  offences  against  an  honest 
•expression  of  public  opinion  are  prosecuted  and  punished  so 
severely,  it  would  be  too  much  to  say  that  all  elections  are 
run  any  more  in  Canada  than  in  England  without  a  heavy 
drain  at  times  on  the  purse  of  a  rich  candidate  or  on  the  con- 
tributions of  a  political  party.  It  is  safe  to  say,  however, 
that  our  system  is  a  vast  improvement  on  that  of  the  United 
States,  and  purity  of  elections  is  largely  promoted  compared 
with  the  si       of  things  in  old  times. 


108 


Federal  Government  in  Canada. 


[564 


The  methods  of  business  which  ihe  houses  follow  are  well 
calculated  to  promote  the  efficiency  of  legislation  and  secure 
the  satisfactory  administration  of  public  affairs.  Their  rules 
and  usoges  are,  in  all  essential  particulars,  derived  from  those 
of  the  Eiiglish  parliament,'  and  there  has  been  no  attempt 
made  to  adopt  the  special  rules  and  practice  of  congress  in 
any  respect.  On  the  day  parliament  has  been  summoned  by 
the  crown  to  meet,  the  governor-general,  either  in  person  or 
by  deputy,  proceeds  to  the  upper  chamber  and  there  seated  on 
the  throne,  surrounded  by  a  brilliant  staff  and  the  high  officers 
of  state,  reads  in  the  two  languages  the  speech,  in  which  his 
government  sets  forth  the  principal  measures  which  they  pur- 
pose to  present  during  the  session.  This  speech,  which  is  a 
very  concise  and  short  document  compared  with  the  elaborate 
message  of  the  president,  is  considered  as  soon  as  possible  in 
the  two  houses  and  generally  passes  without  oppt>8ition  or 
amendment,  since  it  is  the  modern  practice  to  frame  it  in 
terms  that  will  not  evoke  political  antagonism,  though  of 
course  occasions  may  arise  when  a  different  course  will  be 
pursued  in  order  to  test  the  opinion  of  the  house  on  a  par- 
ticular policy  of  the  administration.  As  soon  as  the  formal 
answer  to  the  address  has  been  passed,  the  houses  proceed  to 
appoint  the  committees,  and  commence  the  regular  business 
of  the  session.  The  proceedings  commence  every  day  with 
prayers,  taken  from  the  church  of  England  liturgy,  and  are 
read  by  the  speaker,  alternately  in  English  and  French,  in 
the  commons,  and  by  a  paid  chaplain  in  the  senate.  The 
rules  of  the  two  houses  do  not  vary  much  with  respect  to  the 
conduct  of  business,  but  more  latitude  is  generally  given  to 
members  in  asking  questions  and  in  other  proceedings  in  the 
senate  than  in  the  commons,  where  there  is  greater  necessity 
for  economizing  time.  As  it  is  in  the  popular  house  that 
nearly  all  the  business  of  importance  is  transacted  I  shall 
confine  myself  to  such  a  brief  review  of  its  rules  and  proceed- 
ings as  may  be  interesting  and  useful  to  a  student  of  our 
legislative  system. 


666] 


Federal  Government  in  Canada, 


10& 


While  the  committees  are  an  important  part  of  the  legisla- 
tive mac^hinery  of  the  Canad  an.  parliament,  still  they  do  not 
occupy  the  place  they  have  reached  in  congreasional  govern- 
ment. They  are  few  in  number,  only  ten,  exclusive  of  some 
small  committees  generally  appointed  to  consider  special  ques- 
tions in  the  course  of  a  session.  The  important  bcuies  are 
these :  The  committee  of  public  accounts,  in  vvhicl  Siiunci;  \ 
inquiries  are  made,  and  particular  expenditures  o^  ■  '■  '^'  ■'' 
ernment  reviewed  whenever  expla'  iition  or  invesst':^"  '  is 
deemed  to  l)e  necessary ;  the  committee  of  agriculture  and 
colonization,  in  which  matters  affecting  those  subjects  are 
fully  considered ;  the  committee  of  privileges  and  elections, 
which  explains  itself;  and  four  coramitteos  to  which  all  pri- 
vate bills  respecting  banking  and  commerce,  navigation  and 
shipping,  railways  and  canals,  telephone  and  telegraph  lines, 
bridges,  insurance  and  the  incorporation  of  companies  for 
other  purposes,  are  referred  for  full  consideration.  There  are 
also  two  committees  on  which  members  from  the  two  houses 
sit  to  consider  the  printing  of  documents  and  the  library, 
which  are  matters  of  common  interest  and  management.  The 
committees  vary  in  number  from  twenty-six  to  one  hundred 
and  sixty  members.  The  most  numerous  is  the  railway  com- 
mittee which  has  one  hundred  and  sixty-four  members ;  agri- 
culture and  colonization,  one  hundred  and  eight;  banking 
and  commerce,  one  hundred  and  four ;  miscellaneous  private 
bills,  seventy-five.  They  resemble,  therefore,  in  this  respect 
the  grand  committees  of  the  English  house  of  commons  rather 
than  the  small  bodies  into  which  congress  is  divided — by  the 
speaker  in  the  house  of  representatives  and  by  ballot  in  the 
senate.'  Canadian  committees  are  appointed  by  a  committee 
of  selection  on  which  the  government  has  of  course  a  majority; 
and  both  sides  of  the  house  are  fully  represented.     The  speaker 


! 


'In  the  house  of  representatives  there  were  in  1884  fifty-four  standing 
committees;  in  the  senate  forty-one.  Sixteen  is  the  highest  number  on 
a  committee  in  the  former,  eleven  in  the  latter  house. 


110 


Federal  Govetmrnent  in  Canada, 


[666 


has  no  concern  wliatever  in  this  important  matter  and  acts 
only  as  the  presiding  officer  of  the  assembly,  bound  to  main- 
tain the  rules  and  usages  of  parliament  and  to  exercise  the 
functions  of  his  high  office  irrespective  of  all  political  con- 
siderations whatsoever.  He  is  elected  by  the  majority  at  tho 
opening  of  a  new  parliament  and  holds  his  office  until  it  is 
dissolved  or  he  resigns.  His  functions  are  those  of  the 
speaker  in  the  English  commons,  and  in  no  way  does  he  per- 
form the  political  duties  of  the  speaker  of  the  house  of  repre- 
sentatives, who  is  now  practically  the  legislative  chief  of  the 
party.^ 

All  bills  must  go  through  several  stages  in  both  houses 
before  they  can  receive  the  assent  of  the  governor-general  and 
become  law.  The  second  reading  is  the  stage  when  the  prin- 
ciple of  the  measure  should  be  properly  considered,  and  it  is 
only  in  committee  of  the  whole  that  its  clauses  can  be  regu- 
larly discussed.  All  bills  are  considered  in  committee  of  the 
whole ;  but  private  bills  are  first  sifted  in  one  of  the  standing 
committees  just  mentioned,  and  if  reported  favorably  they 
come  again  before  the  house  for  further  examination.  I  may 
as  well  explain  here  the  distinction  between  the  two  classes  of 
bills.  All  measures  involving  questions  of  public  interest — 
the  criminal  law,  customs,  post  office,  militia  and  other  matters 
within  the  general  powers  of  parliament — are  styled  public 
bills.  These  bills  are  generally  brought  in  directly  on  motion 
l^  the  member  in  charge,  or  on  a  resolution  in  committee  of 
the  whole  whenever  a  public  burden  is  imposed,  on  the  prin- 
ciple that  the  house  should  have  as  long  a  time  as  possible  to 
consider  matters  of  revenue  and  expenditure.  As  the  govern- 
ment is  practically  responsible  for  all  important  measures  of 
public  policy,  the  great  bulk  of  public  legislation  is  prepared 
and  presented  by  them ;  but  it  is  competent  for  any  one  to 
introduce  any  bill  he  wishes,  provided  it  does  not  impose 
taxes  or  appropriate  public  moneys,  which  are  questions  con- 


^  Congressional  Government,  by  Woodrow  Wilson,  p.  108. 


5G7] 


Fedei'ol  Government  in  Canada. 


Ill 


stitutionally  within  the  purview  of  the  executive  alone.  The 
order  of  business,  laid  daily  on  the  desk  of  every  member,  is 
divided  into  government  orders,  public  bills  and  orders,  and 
private  bills,  besides  questions  put  to  the  government,  and 
not'ces  of  motions,  all  of  which  are  taken  up  on  particular 
days  in  accordance  with  the  rules  of  the  house.  If  a  member 
has  a  bill  of  importance  on  the  paper,  the  government  will 
give  him  every  assistance  in  passing  it  before  the  house  is  pro- 
rogued and  even  will  take  charge  of  it  themselves  should  it 
be  expedient.  Certain  days  are  set  apart  for  the  government 
business  and  for  private  members ;  but  near  the  close  of  the 
session  the  administration  control  all  the  time,  since  theirs  is 
the  all-important  legislation.  The  private  bills,  which  always 
outnumber  the  public  and  government  measures,  are  presented 
and  passed  in  conformity  with  special  rules  which  do  not  apply 
to  the  other  classes.  Any  persons  who  desire  the  incorporation 
of  a  banking,  insurance,  railway,  or  other  company,  or  to  con- 
struct a  bridge,  wharf  or  other  work,  must  give  notice  in  cer- 
tain journals  of  their  intention,  and  then  come  before  parlia- 
ment by  petition.  This  petition  must  be  immediately  considered 
bv  a  standing  committee  to  see  if  it  is  in  accordance  with  the 
published  notice  and  the  standing  orders  of  the  house ;  and 
then,  if  the  report  is  favorable,  the  bill  is  presented,  read  a 
second  time,  and  referred  to  one  of  the  committees  to  which  it 
should  properly  go.  Its  consideration  in  that  committee  is 
the  most  important  stage  to  which  it  is  submitted ;  for  its 
promoters  must  now  show  that  there  is  no  objection  to  its  pas- 
sage, and  it  is  the  duty  of  the  committee  to  see  that  it  inflicts 
no  injury  and  is  in  conformity  with  the  rublic  interests.  If 
there  is  opposition  to  the  bill,  full  opportunity  is  given  by 
the  rules  to  the  contestants  to  appear  and  set  forth  their  case. 
The  house,  through  committees  of  this  sort,  acts  in  a  quasi 
judicial  capacity.  Members  of  the  government  sit  on  such 
committees  and  pay  particular  attention  to  all  the  details  of 
legislation  of  this  class.  It  will  consequently  be  seen  that  the 
administration  becomes  practically  responsible  for  the  charac- 


\'  I 


\& 


t 


.'i 


?  ' 


!      V! 


112 


Federal  Government  in  Canada. 


ms 


I 

iii 


ter  of  all  the  legislation  that  )as8e8  parliament.  The  average 
nnmber  of  measiiios  that  pas3  the  two  houses  every  session  is 
ore  hundred  nnd  ten,  of  which  three- fourths  at  least  are  of  a 
private  nature.  Tlie  total  number  of  bills  presented  as  a  rule 
during  the  session  does  not  exceed  one  hundred  and  thirty, 
and  it  is  therefore  evident  that  very  few  desirable  measures 
fail  to  become  law.  The  fact  that  on  the  average  seven  thou- 
sand bills  are  brought  every  year  into  congress,  of  which  not 
more  than  one  thirtieth*  ever  becomes  law,  stands  out  in  strik- 
ing contrast  with  the  limited  amount  of  legislation  in  the 
Canadian  parliament.  In  both  countries  there  are  legislatures 
to  relieve  the  central  authority  of  a  great  number  of  bills  which 
otherwise  would  come  before  it.  The  difference  between 
Canada  and  the  United  States  with  respect  to  population  and 
wealth  does  not  by  any  means  explain  this  difference  in  point 
of  legislation.  In  all  probability  the  reason  must  be  sought 
in  the  fact  that  in  the  Canadian,  as  in  the  British  parliament, 
there  is  an  administration  which  is  immediately  responsible 
for  all  important  matters  of  public  policy,  and  always  bound 
to  give  a  vigilant  scrutiny. to  every  measure  that  comes  before 
the  house. 

The  principal  duty  of  parliament  is  very  truly  considered 
to  be  the  voting  of  supply.  From  early  times  in  English 
history  the  kings  were  obliged  to  resort  to  the  nation  and  ask 
them  to  provide  the  money  necessary  to  meet  their  financial 
necessities.  One  of  the  most  famous  statutes  in  England  is 
that  of  1297,  which  followed  the  great  charter  wrung  from 
John  at  Runnymede,  and  declares  that  no  tallage  shall  be 
taken  without  the  good  will  and  assent  of  archbishops,  bishops, 
earls,  barons,  knights,  burgesses,  and  other  freemen  of  the 
land.  Since  that  day,  parliament  has  had  the  power  of  taxa- 
tion. The  three  estates  originally  voted  supply  separately, 
but  in  the  course  of  time  the  right  of  initiating  all  taxation 
and  voting  money  rested  with  the  people's  representatives.  In 


'  Professor  Bryce  in  the  American  Commonwealth,  I.,  181,  182. 


669] 


Federal  Government  in  Canada. 


113 


Canada,  as  I  have  already  shown  in  the  second  lecture,  the 
commons  houses  in  the  various  provinces,  from  the  very  com- 
mencement of  legislative  institutions,  asserted  their  claims  to 
full  control  over  the  public  grants.  Now  for  many  years  the 
rules  and  images  that  have  so  long  obtained  in  England  with 
respect  to  money  votes  and  taxes  prevail  in  Canada  and  govern 
the  relations  between  the  two  houses.  The  crown,  with  the 
advice  of  the  council,  recommends  all  appropriations  of  public 
money.'  All  rjeasures  of  taxation  can  only  be  introduced  by 
ministers  of  the  crown  and  must  be  shown  necessary  for  the  [)ub- 
lic  service.  Appropriations  and  taxes  are  invariably  first  voted 
in  committee  of  the  whole  in  the  shape  of  resolutions  which, 
when  agreed  to  at  a  subsequent  stage  of  the  house,  are  incor- 
porated into  bills.  Permanent  grants,  such  as  ministers'  or 
judges'  salaries,  are  passed  in  this  way  in  ordinary  committees 
of  the  whole.  All  suras  of  money,  however,  for  the  service 
of  the  year,  are  voted  every  session  in  committee  of  supply, 
when  the  estimates,  giving  all  the  votes  in  detail,  are  formally 
laid  before  the  house  by  message  from  the  governor-general. 
These  estimate"  contain  several  hundred  votes  arranged  in  the 
order  of  the  various  public  services.  For  instance, — civil 
government,  militia,  penitentiaries,  administration  of  justice, 
immigration,  Indians,  public  works,  railways  and  canals,  quar- 
antine and  the  numerous  other  subjects  for  which  parliament 
votes  annually  large  sums  of  the  public  money.  These  esti- 
mates contain  the  expenditures  for  the  current  and  the  pre- 
vious year  in  parallel  columns,  for  purposes  of  comparison, 
and  it  is  the  duty  of  the  minister  responsible  for  a  particular 


I 

til 


^B.  N.  A.  Act,  1867,  sec.  53.  Bills  for  appropriating  any  part  of  the  pub- 
lic revenue,  or  for  imposing  anj  tax  or  impost,  shall  originate  in  the  house 
of  commons. 

54.  It  shall  not  be  lawful  for  the  house  of  commons  to  adopt  or  pass  any 
vote,  resolution,  address,  or  bill  for  the  appropriation  of  any  part  of  the 
public  revenue,  or  of  any  tax  or  impost,  to  any  purpose  that  has  not  been  first 
recommended  to  that  house  by  message  of  the  governor-general  in  the  ses- 
sion in  which  such  vote,  resolution,  address,  or  bill  is  proposed. 


114 


Federal  OovernmerU  in  Canada. 


[670 


expenditure  to  give  tull  explanations  on  the  subject  when  they 
are  demanded  by  the  house.  As  every  vote  is  carefully  scanned 
a  very  considerable  part  of  the  session  is  occupied  by  debates 
on  this  important  committee,  over  which  a  permanent  chair- 
man, v/ho  is  also  the  deputy  speaker,  presides.  When  all  the 
votes  are  passed  in  committee,  then  they  are  reported  to  the 
house,  and  a  further  opportunity  given  for  debate,  though 
members  are  permitted  to  speak  only  once  at  this  stage.  Res- 
olutions are  next  passed  in  committee  of  ways  and  means  to 
authorize  the  necessary  payments  out  of  the  consolidated  fund, 
and  finally  the  appropriation  bill,  containing  all  the  votes  of 
supply  in  full,  is  introduced  and  passed  through  all  its  stages. 
The  committee  of  supply  votes  the  money,  and  the  committee 
of  ways  and  means  provides  the  means  of  payment.  It  is  in  the 
latter  committee  all  taxes  are  imposed  for  purposes  of  public 
revenue. 

When  the  estimates  have  been  brought  in  it  is  the  duty  of 
the  finance  minister  to  make  his  financial  statement,  or,  in 
parliamentary  phrase,  present  the  "  budget."  *  He  will  on  this 
occasion  review  the  expenditure  of  the  past,  and  estimate  that 
for  the  following  year,  give  his  opinion  on  the  financial  situa- 
tion and  lay  before  the  house  a  statement  of  any  scheme  of  tax- 
ation that  the  government  may  have  decided  on,  or  of  any 
changes  that  may  be  deemed  necessary  in  the  existing  tariff. 
One  of  the  most  important  and  interesting  debates  of  the  ses- 
sion generally  takes  place  after  the  delivery  of  this  speech. 

From  the  beginning  of  the  session,  members  ask  questions 
of  the  government  on  every  imaginable  public  topic,  and  make 
formal  motions  for  papers  relating  to  matters  of  general  or 
local  interest.  All  such  motions  and  inquiries  are  made  after 
two  days'  notice ;  for  the  rules  are  very  properly  framed  so  as 
to  prevent  surprises,  and  give  the  house  due  information  of 
the  business  to  come  daily  before  it.  Bui;  in  the  Canadian  house, 


^  From  the  old  French  word  bougeite,  a  bag.    In  making  this  Btatement,  the 
minister  opens  the  money  bag  of  the  people,  figuratively  speaking. 


671] 


Federal  Govemment  in  Canada. 


115 


and  in  the  English  commons  in  a  more  limited  sense  under 
the  new  regulations  adopted  since  "  obstruction  "  showed  its 
objectionable  features,  there  are  certain  methods  which  enable 
members  to  move  motions  or  ask  questions  without  number, 
and  even  v  'thout  notice  in  the  Canadian  commons.  It  is 
always  open  to  a  member  to  bring  up  an  important  question 
immediately — except,  of  course,  when  there  is  a  subject  under 
consideration — and  debate  it  at  any  length  on  a  motion  for 
the  adjournment  of  the  house.  Then,  as  soon  as  committee  of 
supply  is  moved  on  any  day,  a  member  may  make  a  motion 
on  any  question  he  wishes,  unless  it  refers  to  the  voles  to  be 
discussed  in  supply.  As  the  rules  do  not  permit  any  amend- 
ment to  be  made  to  a  motion  at  such  a  stage,  "  the  previous 
question,"  in  the  English  parliamentary  sense,  is  practically 
in  force  and  it  is  possible  to  get  a  direct  vote  on  an  issue,  with- 
out the  evasions  that  amendments  offer  on  other  occasions. 
While  in  the  case  of  all  bills  and  other  motions,  amendments 
must  be  relevant  to  the  question,  members  can  here  bring  up 
any  subject  they  please.  This  is  a  practice  which  has  its  his- 
torical origin  in  the  fact  that  in  old  times,  when  the  English 
parliamentary  system  was  developing  itself,  the  people's  repre- 
sentatives laid  down  the  principle  that  the  king  must  redress 
their  grievances  before  they  should  grant  him  the  supply  he 
asked  from  the  nation.  Those  times  have  long  since  passed 
away  and  the  people  now  fully  control  all  taxes  and  expendi- 
tures, but  the  crown  still  asks  for  money  through  the  council, 
and  the  commons  grant  it  in  due  form.  It  is  no  longer  neces- 
sary to  threaten  the  crown  with  a  refusal  of  supplies  unless  the 
people's  grievances  are  redressed  ;  but  still  they  ain  refuse  it 
to  an  unfaithful  government  should  the  necessity  arise.  As  a 
matter  of  fact,  should  the  government  be  defeated  in  a  session 
before  supply  is  voted,  the  honse  would  pass  only  such  votes 
as  are  necessary  to  meet  the  exigencies  of  the  public  service, 
and  leave  the  whole  question  of  supply  open  until  the  crisis  is 
over  and  there  is  in  office  a  ministry  which  has  the  confidence 
of  the  house  and  country.     The  privilege  of  obtaining  an 


I  * 


fifS 


116 


Federal  Oovemment  m  Cajiada. 


[672 


te 


expreBsion  of  opinion  on  any  qu&<3tion  of  interest,  and  of  setting 
forth  any  public  grievance  is  one  which  is  often  nse<l  in  the 
Canadian  house,  though  it  has  never  l)een  abused  as  in  Eng- 
land. The  practice  of  not  giving  tlie  government  and  house 
notice  of  such  motions,  as  in  England,  is  objectionable,  and 
that  is  practically  admitted  by  the  fact  that  it  is  now  generally 
considered  courteous  to  inform  the  ministry  privately  of  the 
subject  before  it  is  formally  proposed.  It  would,  however, 
be  clearly  to  the  public  advantage  were  th  '•nles  to  require 
that  the  whole  house  should  always  have  be.  j  +  the  text  or 
at  least  the  substance  of  a  motion  so  that  it  may  i  o  discussed 
as  intelligently  as  possible. 

The  houses  have  never  been  compelled  by  obstruction,  as  in 
England,  to  adopt  rules  for  the  closure  of  a  debate,  nor  do  they 
limit  the  length  of  speeches  on  any  occasion.  "  The  previous 
question  "  does  not  cut  off  a  discussion,  as  in  the  United  States, 
but  in  accordance  with  the  old  English  practice,  only  prevents 
amendment  to  a  question.  The  debate  continues  on  the  main 
question,  until  a  vote  is  taken  and  it  is  decided  whether  it 
shall  be  put  or  not.  If  the  house  decide  that  the  question  be 
not  put,  then  the  main  motion  disappears  from  the  order  paper 
and  the  debate  cannot  continue ;  but  if  the  house  decide  that  the 
question  be  put,  then  the  debate  must  cease  and  the  vote  be 
taken  immediately.  The  debates  of  the  house  are  conducted, 
as  a  rule,  with  decorum,  and  the  occasions  are  relatively  few 
when  the  speaker  is  obliged  to  call  a  member  to  order  for  the 
use  of  improper  language.  Many  years  have  passed  since  a 
member  has  been  "  named "  and  censured  by  the  house  for 
unparliamentary  expressions  or  conduct.  Expulsion  or  sus- 
pension is  unknown  to  these  later  days  of  Canadian  parlia- 
mentary history,  though  cases  of  expelling  a  member  just  as 
unjustifiable  as  that  of  Wilkes  can  be  found  in  the  legislative 
annals  of  French  Canada  and  Upper  Canada,  from  1800  to 
1836.  Even  when  party  strife  runs  high  and  the  debate  goes 
on  for  weeks,  the  house  shows  great  power  of  self-restraint. 
On  the  occasion  of  the  discussion  in  1885  of  the  dominion 


673] 


Federal  Government  in  Canada. 


117 


electoral  franchise  bill,  to  which  the  opposition  took  very 
strong  objection,  the  house  had  a  sitting  wliich  lasted  over 
fifty  hours ;  but  there  Mas  no  exhibition  of  ill  temper  or 
passion,  and  the  two  contending  parties  simply  made  a  great 
physical  effort  to  tire  each  other  out.  The  s}>eeches  on  impor- 
tant occasions,  however,  are  sometimes  unnecesHarily  long;  for 
it  is  not  unusual  for  a  member  to  take  up  three  hours  before 
he  closes.  Debates  are  in  such  cases  pr(jlonge<l  for  days  and 
the  house  Ixicomes  too  often  the  theatre  for  the  utterance  of 
elaborate  essays  instead  of  that  incisive  discussion  which  is 
best  adapted  to  a  deliberative  assembly.  Sometimes  the  house 
rises  to  the  "  height  of  a  great  argument "  and  the  debate  is 
confined  closely  to  the  subject,  and  to  a  few  leading  men  on 
either  side.  The  fact  is  that  in  the  majority  of  cases,  men 
speak  to  their  constituents  rather  than  to  the  hou  e,  through 
the  medium  of  the  official  reports  which  are  very  full  and  give 
facilities  for  members  to  distribute  their  speeches  ad  libitum  in 
their  electoral  districts.  The  house,  however,  in  the  ordinary 
proceedings  and  in  committee  of  the  whole,  and  in  select  com- 
mittees, shows  a  very  practical  capacity  for  business,  and  in 
.this  way  affords  some  compensation  for  the  wordiness  that  too 
often  distinguishes  its  debates.  The  opportunities  for  oratori- 
cal displays  are  few,  but  at  .imes  there  are  speeches  worthy  of 
any  legislative  assembly  in  English  speak iilg  countries,  and 
illustrative  of  the  high  intellectual  standard  of  some  of  its 
members.  Some  of  the  French  members  speak  English  with 
remarkable  accuracy,  and  it  is  but  rarely  now  that  any  other 
language  is  heard  in  important  debates,  since  the  minority  feel 
themselves  compelled  to  speak  so  as  to  be  understood  by  the 
great  majority  of  which  the  house  is  composed.  All  the 
motions,  however,  are  read  and  all  the  proceedings  printed, 
in  the  two  languages,  in  accordance  with  the  British  North 
America  Aut  and  the  rules  of  the  two  houses.^ 


IV:  l\ 


ill 


.41^  n 


*  B.  N.  A.  Act,  sec.  133.  Either  the  English  or  the  French  language  may 
be  used  by  any  person  in  the  debates  of  the  houses  of  the  parliament  of 


118 


Federal  Government  in  Canada. 


[574 


In  case  o/  a  division  on  a  question,  the  motion  is  formally 
put  by  the  speaker,  and  he  calls  for  the  "  yeas  "  and  "  nays." 
If  he  cannot  decide  from  the  voices^  and  five  members  call  for 
the  names,  those  in  favor  of  the  question  first  stand  up  and 
the  name  of  each  member  is  called  without  reference  to  alpha- 
betical order  by  the  assistant  clerk  and  recorded  by  the  clerk 
on  a  roll  before  him.  Then  the  same  procedure  is  repeated 
in  the  case  of  the  opposite  side,  and  as  soon  as  the  clerk  has 
counted  up  and  announced  the  numbers,  the  speaker  declares 
the  motion  carried  or  negatived  as  the  case  may  be.  The 
names  are  invariably  recorded  in  alphabetical  order  in  the 
journals.  The  whole  process  is  very  simple,  and  takes  only 
about  twenty  minutes  from  the  time  the  members  are  "called 
in  "  and  the  vote  declared. 

In  concluding  this  lecture,  I  may  briefly  refer  to  the  position 
of  that  large  body  of  permanent  officials  generally  known  as 
the  civil  service  of  Canada,  whose  services  are  so  valuable  and 
indispensable  to  the  good  government  of  the  country  at  h  \jC. 
Except  in  some  of  the  smaller  provinces — in  Nova  Scotia,  for 
instance,  until  recently — there  has  been  for  half  a  century  and 
more  in  Canada,  always  a  geneni^  recognition  of  the  important- 
principle  that  the  public  servants  saould  be  irremovable  except 
for  sufficient  cause,  and  that  they  should  continue  in  office  with- 
out respect  to  changes  of  political  administrations.  In  the  days 
previous  to  responsible  government,  this  class  was  appointed 
by  the  governors,  but  since  the  days  of  Lord  Metcalfe,  the 
third  governor-general  of  Canada  after  the  union  of  1841, 
who  attempted  in  some  memorable  cases  to  ignore  the  advice 
of  his  ministers,  judges  and  all  public  officials  have  been  inva- 


Ganada  and  of  the  houses  of  the  legislature  of  Quebec ;  and  both  those 
languages  shall  be  used  in  the  respective  records  and  journals  of  those 
houses ;  and  either  of  those  languages  may  be  used  by  any  person  or  in  any 
pleading  or  process  in  or  issuing  from  any  court  of  Canada  establbhed 
under  this  act,  and  in  or  from  all  or  any  of  the  courts  of  Quebec. 

The  acts  of  the  parliament  of  Canada  and  of  the  legislature  of  Quebec 
shall  be  printed  and  published  in  both  those  languages. 


675] 


Federal  Government  in  Canada. 


119 


riably  appointed  on  the  recommendation  of  the  administration. 
There  is  now  a  law  ^  providing  for  examinations  for  admission 
to  and  promotions  in  all  the  important  departments  of  the 
public  service.  It  is  still  a  moot  question  in  Canada,  as  in 
England,  whether  in  all  cases — especially  in  promotions — 
success  in  answering  the  questions  of  examiners  is  invariably 
the  best  test  of  a  candidate's  capacity  for  filling  certain  public 
positions — whether  sometimes  it  does  not  merely  illustrate  an 
ability  to  "  cram."  Experience  in  an  office,  in  the  opinion  of 
men  qualified  to  speak  of  such  a  subject,  can  most  frequently 
prove  the  competency  of  an  individual  for  the;  ordinary  routine 
duties  that  the  majority  of  public  officials  have  to  fill.  Be  that 
as  it  may,  the  educational  test  has  at  least  the  advantage  of 
keeping  out  of  the  public  service  many  undesirable  men  who, 
without  some  such  test,  would  be  pushed  into  the  departments 
for  mere  political  reasons.  The  civil  service  act  has  relieved 
the  government  to  a  very  considerable  degree  of  a  political 
pressure  which  had  seriously  interfered  with  the  efficient  organ- 
ization and  working  of  the  departments.  Besides  the  minor 
offi'i^ials  appointed  in  accordance  with  the  provisions  of  the  law, 
there  are  a  large  number  of  important  offices,  like  collectors  of 
customs,  postmasters,  deputy  or  permanent  heads  of  depart- 
ments, which  are  still  given  as  rewards  for  political  service. 
The  moment,  however,  these  men  are  appointed  and  show 
themselves  capable  in  the  discharge  of  their  duties,  they  become 
the  servants  of  the  people  at  large,  and  not  of  a  particular 
party  or  administration.  Recognizing  their  obligations  in  this 
respect,  the  public  officials  of  the  dominion  generally  keep  aloof 
from  party  conflict  and  intrigue  and  confine  themselves  to 
the  legitimate  functions  devolving  upon  them.  When  they 
have  attained  a  certain  age,  and  become  incapacitated  for  per- 
forming their  duties,  they  are  allowed  a  fair  superannuation 


n 


^See  Can.  Rev.  Stat.,  c.  17  (as  amended  by  51  V.,  c.  12),  which  regulates 
the  salaries  paid  to  deputy  ministers  and  clerks  according  to  their  grade. 


120 


Federal  GovemmerU  in  Canada. 


[676 


allowance/  in  accordance  with  the  conditions  laid  down  in  the 
law.  In  certain  political  emergencies  there  may  be  sometimes 
an  inclination  to  use  the  superannuation  provisions  to  create  a 
vacancy  to  reward  a  follower  of  some  political  party ;  but  such 
cases  are  natural  temptations  inseparable  from  a  system  of 
popular  government.  On  the  whole,  this  superannuation 
allowance  is  an  inducement  to  men  to  enter  and  continue  in 
the  public  service,  and  is  justified  by  the  experience  of  the 
parent  state.  So  much  depends  on  the  efficiency  of  the  per- 
manent public  service  in  a  country  like  Canada,  where  govern- 
ments and  ministers  are  constantly  changing,  that  it  seems 
expedient  to  offer  every  possible  incentive  to  the  best  class  of 
men  to  give  up  the  greater  ambitions  and  prizes  of  life,  and 
devote  their  services  to  the  government.  Whatever  defects 
may  still  exist  in  the  rules  and  practices  that  r^ulate  the  public 
service,  it  is  not  too  much  to  p«»v  that  the  permanent  officials 
of  Canada  are,  in  general,  an  istrious  and  efficient  class,  in 
every  way  reflecting  credit  on  our  system  of  government. 


'  See  Can.  Rev.  Stat.,  c.  18. 


LECTURE  IV. 

THE  PROVINCIAL  GOVERNMENTS  AND 
LEGISLATURES. 


The  Provinces  are  so  many  political  entities,  enjoying  ex- 
tensive powers  of  local  governmert  and  forming  parts  of  a 
Dominion  whose  government  possesses  certain  national  attri- 
butes essential  to  the  security,  successful  working,  and  per- 
manence of  the  federal  union,  established  by  the  British  North 
America  Act  of  1867,  which  defines  the  respective  jurisdictions 
of  the  federal  organization  and  its  members.  These  province 
vary  just  as  do  the  American  States  in  population  and  area. 
Ontario  may  be  compared  to  Ohio,  and  Prince  Edward  Island 
to  Rhode  Island.  British  Columbia  has  the  area  of  an  em- 
pire, but  as  yet  its  whole  population  is  the  smallest  of  all  the 
provinces.  Previous  to  the  confederation,  all  the  provinces, 
except  Manitoba,  which  was  formed  in  1870  out  of  the  North- 
west Territories,  had  a  complete  organization  of  government 
and  legislature.  The  political  history  of  Ontario  and  Quebec 
has,  for  convenience  sake  and  on  account  of  their  having 
written  constitutions  since  1774,  been  briefly  reviewed  in  a 
former  lecture,  and  it  is,  therefore,  only  necessary  to  refer 
here  to  that  of  the  smaller  provinoes.  Nova  Scotia,  New 
Brunswick  and  Prince  Edward  Island  were  formerly  por- 
tions of  the  French  domain  in  America,  but  they  were  form- 
ally ceded  to  England  by  the  treaty  of  Utrecht  in  1714,  and 
the  treaty  of  Paris  in  1763.  There  are  still  in  certain  dis- 
tricts a  small  population  descended  from  the  old  French,  who 
once  tilled  the  fertile  lands  of  Acadie,  that  ill-defined  r^ion, 
which  comprised  not  only  Nova  Scotia  and  New  Brunswick, 
9  121 


"  i 


122 


Federal  OovemmerU  in  Canada. 


[578 


but  a  considerable  part  of  the  State  of  Maine,  according  to 
the  contentions  of  French  statesmen.  None  of  these  provinces 
were  ever  given  written  constitutions  by  the  parliament  of 
Great  Britain,  as  we  have  seen  was  the  case  with  old  Canada  j 
but  to  all  intents  and  purposes  they  enjoyed,  previous  to  1867, 
as  complete  a  system  of  self-government  as  that  large  province. 
Their  constitutions  must  be  sought  in  the  commissions  of  the 
lieutenant-governors,  despatches  of  the  colonial  secretary  of 
state,  imperial  statutes,  and  various  official  documents,  grant- 
ing in  the  course  of  time  a  legislative  system  and  responsible 
government. 

At  the  time  of  the  outbreaks  in  Upper  and  Lower  Canada 
in  1837-8,  there  was  still  a  considerable  amount  of  dissatis- 
faction in  the  Maritime  Provinces,  arising  from  the  existence 
of  an  irresponsible  executive,  the  constant  interference  of  the 
imperial  government  in  colonial  matters,  and  the  abuse  of 
the  powers  of  the  representative  and  executive  bodies ;  but 
"  if  there  was  in  those  sections  less  formidable  discontent  and 
less  obstruction  to  the  regular  yourse  of  government,  it  was 
because  in  them  there  was  a  considerable  departure  from  the 
ordinary  course  of  the  colonial  government,  and  a  nearer 
approach  to  sound  constitutional  practice."  In  New  Bruns- 
wick especially,  "the  political  controversies  that  had  been 
extremely  bitter  between  the  executive  and  legislative  authori- 
ties were,  to  a  great  extent,  terminated  by  the  concession  of 
all  the  revenues  to  the  assembly."  ^  In  Prince  Edward  Island 
the  political  situation  was  aggravated  by  the  fatal  mistake, 
made  at  the  very  commencement  of  its  history,  of  handing 
over  all  the  lands  to  a  few  absentee  landlords,  a  burning 
question  that  was  not  satisfactorily  settled  until  after  the 
island  had  become  part  of  the  confederation. 

At  the  time  of  the  confederation  all  the  provinces  enjoyed 
parliamentary  government  in  as  complete  a  sense  as  Canada 
itself,  responsible  government  having  been  given  to  Nova 


'  Lord  Durham's  Beport,  pp.  62,  63. 


579] 


Federal  Government  in  Canada. 


123 


Scotia  and  New  Brunswick  in  1848,  and  to  Prince  Edward 
Island  three  years  later.  In  each  province  there  was  a  lieu- 
tenant-governor appointed  by  the  crown  directly,  an  executive 
responsible  to  the  legislature,  which  was  composed  of  two 
houses,  an  assembly  elected  by  the  people  and  a  legislative 
council  appointed  by  the  crown,  except  in  Prince  Edward 
Island,  where  then,  as  now,  it  was  elective. 

It  was  therefore  only  necessary  to  enact  in  the  constitution 
that  the  two  provinces  of  Nova  Scotia  and  New  Brunswick 
should  have  the  same  territorial  limits,  and  that  their  constitu- 
tions should  remain  as  at  the  time  of  the  union,  until  altered 
under  the  authority  of  the  act.  In  the  case,  however,  of  Canada, 
it  was  necessary  to  divide  it,  since  one  of  the  principal  objects 
of  the  federal  union  was  to  get  rid  of  the  political  difficulties 
that  had  so  long  complicated  government  in  Canada  and  sep- 
arated French  Canada  from  the  western  section.  Consequently 
Canada  was  divided  into  two  separate  provinces  as  before  the 
union  of  1841,  with  the  respective  names  of  Quebec  and 
Ontario,  instead  of  Lower  Canadi.  and  Upper  Canada.^    In 


^  B.  N.  A.  Act,  1867,  sec.  6.  Canada  shall  be  divided  into  four  provinces, 
named  Ontario,  Quebec,  Nova  Scotia  and  New  Brunswick. 

6.  The  parts  of  the  province  of  Canada  (as  it  exists  at  the  passing  of  this  act) 
which  formerly  constituted  respectively  the  provinces  of  Upper  Canada  and 
Lower  Canada,  shall  be  deemed  to  be  severed  and  shall  form  two  separate 
provinces.  The  part  which  formerly  constituted  the  province  of  Upper 
Canada  shall  constitute  the  province  of  Ontario ;  and  the  part  which  for- 
merly constituted  the  province  of  Lower  Canada  shall  constitute  the  pro- 
vince of  Quebec. 

7.  The  provinces  of  Nova  Scotia  and  New  Brunswick  shall  have  the  same 
limits  as  at  the  passing  of  this  act. 

An  imperial  statute  passed  since  1867  (B.  N.  A.  Act,  1871)  provides: 
3.  The  parliament  of  Canada  may  from  time  to  time,  with  the  consent  of 
the  legislature  of  any  province  of  the  said  dominion,  increase,  diminish,  or 
otherwise  alter  the  limits  of  such  province,  upon  such  terms  and  conditions 
as  may  he  agreed  to  by  the  said  legislature,  and  may,  with  the  like  consent, 
make  provision  respecting  the  effect  and  operation  of  any  such  increase  or 
diminution,  or  alteration  of  territory  in  relation  to  any  province  affected 
thereby. 


124 


Federal  Government  in  Canada. 


[680 


view  of  this  division,  it  became  necessary  to  make  special  pro- 
visions for  Ontario  and  Quebec  in  accordance  with  an  address 
adopted  in  the  Canadian  legislature.  The  representatives  of 
Upper  Canada  wished  to  have  only  one  house,  a  legislative 
assembly,  while  those  of  Lower  Canada  preferred  the  more 
British  and  indeed  the  more  American  system  of  two  houses. 
It  has  been  urged  by  an  eminent  judge  that  the  British  North 
America  Act  carried  out  confederation  "by  first  consolidating 
the  four  original  provinces  into  one  body  politic,  the  Dominion, 
and  then  redistributing  this  Dominion  into  four  provinces."  ^ 
In  other  words  the  provinces  were  newly  created  by  the  act  of 
union.  But  by  no  reasoning  from  the  structure  of  the  act, 
can  this  contention,  which  makes  the  provinces  the  mere  crea- 
tions of  the  statutes,  and  practically  leaves  them  only  such 
powers  as  are  specially  stated  in  the  act,  be  justified.  If  it 
was  so,  there  must  have  been  for  an  instant  a  legislative  union 
and  a  wiping  out  of  all  old  powers  and  functions  of  the  pro- 
vincial organizations  and  then  a  redivision  into  four  provinces 
with  only  such  powers  as  are  directly  provided  in  the  act. 

The  weight  of  authority  now  clearly  rests  with  those  who 
have  always  contended  that  in  entering  into  the  federal  com- 
pact the  provinces  never  intended  to  renounce  their  distinct 
and  separate  existence  as  provinces,  when  they  became  part 
of  the  confederation.  This  separate  existence  was  expressly 
reserved  for  all  that  concerns  their  internal  government ;  and 
in  forming  themselves  into  a  federal  association  under  political 
and  legislative  aspects,  they  formed  a  central  government  for 
inter-provincial  objects  only.  Far  from  the  federal  authority 
having  created  the  provincial  powers,  it  is  from  these  provin- 
cial powers  that  there  has  arisen  the  federal  government  to 
which  the  provinces  ceded  a  portion  of  their  rights,  property 
and  revenues.' 


^Mr.  Justice  Strong,  St.  Catharine's  Milling  Company  V8.  The  Queen. 
Sup.  Court  B.,  Vol.  13,  p.  605. 

'  An  eminent  constitutional  lawyer,  Hon.  Edward  Blake,  has  taken  issue 
with  the  learned  judge  in  the  course  of  an  exceedingly  able  argument  he 


581] 


Federal  Government  in  Canada. 


126 


The  constitutions  of  the  four  provinces,  which  composed  the 
dominion  in  1867,  are  the  same  in  principle  and  in  details, 
except  in  the  case  of  Ontario,  where  there  is,  as  I  have  already 
shown,  only  a  legislative  assembly.  The  same  may  be  said  of 
the  other  provinces  that  have  been  brought  into  the  union 
since  1867.  All  the  provisions  of  the  British  North  America 
Act  that  applied  to  the  original  provinces  were,  as  far  as  possi- 
ble, made  applicable  to  the  provinces  of  British  Coluxx^oia, 


made  before  the  judicial  committee  of  privy  council,  in  the  case  of  the 
Queen  and  the  St.  Catharine's  Milling  Company,  and  I  cannot  do  better 
than  quote  his  exact  words,  which  seem  clearly  to  indicate  the  real  char- 
acter of  the  union :  "  What  then  was  the  gei  eral  scheme  of  that  act  ?  First 
of  all,  as  I  have  suggested,  it  was  to  create  a  federcU  as  distinguishe'^  from  a 
legislative  union,  a  union  composed  of  several  existing  and  conl'  ^  entir 
ties.  It  was  not  the  intention  of  parliament  to  mutilate,  confoi,.ia  and 
destroy  the  provinces  mentioned  in  the  preamble,  and  having  done  so,  from 
their  mangled  remains,  stewed  in  some  legislative  caldron,  evoke  by  some 
legislative  incantation,  absolutely  new  provinces  into  an  absolutely  new 
existence.  It  was  rather,  I  submit,  the  design  and  object  of  the  act,  so  far 
as  consistent  with  the  re-division  of  the  then  province  of  United  Canada 
into  its  old  political  parts,  Upper  and  Lower  Canada,  and  with  the  federal 
union  of  the  four  entities.  Nova  Scotia,  New  Brunswick  and  the  reconsti- 
tuted parts  of  old  Canada,  Ontario  and  Quebec ;  it  was  the  design,  I  say,  so 
far  as  was  consistent  with  those  objects,  by  gentle  and  considerate  treatment 
to  preserve  the  vital  breath  and  continue  the  political  existence  of  the  old 
provinces.  However  this  may  be,  they  were  being  made,  as  has  been  well 
said,  not  fractions  of  a  unit  but  units  of  a  multiple.  The  Dominion  is  a 
multiple,  and  each  province  is  a  unit  of  that  multiple,  and  I  submit  that 
undue  stress  has  been  laid,  in  the  judgment  of  one  of  the  learned  judges 
below,  upon  the  form  which  is  said  to  have  been  adopted,  of  first  uniting 
and  then  dividing  the  provinces.  I  submit  that  the  motive  and  cause  of 
that  form  was  the  very  circumstance  to  which  I  have  adverted,  the  neces- 
sity of  the  redivision  of  old  Canada.  Three  provinces  there  were, '  four ' 
there  were  to  be ;  and  the  emphatic  word  in  that  clause  is  the  word  *  four.' 
But  for  the  special  circumstance  of  the  redivision  of  old  Canada,  there 
would  have  been  no  such  phrase.  Again,  consistently  with  and  supporting 
the  suggested  scheme  of  the  act,  there  is  to  be  found  important  language 
with  reference  to  the  provincial  institutions  and  rights  of  property  which 
are  spoken  of  as  continued  and  retained,  words  entirely  repugnant  to  the 
notion  of  a  division  and  a  fresh  creation."  See  argument  published  in 
pamphlet  form,  Toronto,  1888. 


II 


126 


Federal  Oavervment  in  Ckmada. 


[682 


Manitoba  and  Prince  Edward  Island,  just  as  if  they  had 
formed  part  of  the  union  in  1867. 

Manitoba  was  given  a  constitution  similar  to  that  of  the 
older  provinces  by  an  act  of  Canadian  parliament,  and  it  was 
expressly  provided  in  the  terms  of  union  with  British  Columbia 
that  the  government  of   he  dominion  would  consent  to  the 
introduction  of  responsible  government  into  that  province  and 
that  the  constitution  of  the  legislature  should  be  amended  by 
making  a  majority  of  Its  members  elective.^     Immediately 
after  the  union  these  reforms  were  carried  out,  and  the  province 
was  placed  on  the  same  footing  as  all  the  other  provinces. 
Consequently  the  local  or  provincial  constitutions  are  now 
practically  on  an  equality,  so  far  as  the  executive,  legislative 
and  all  essential  powers  of  self-government  are  concerned  j  and 
all  of  them  have  the  authority  under  the  fundamental  law  to 
amend  their  constitutions,  except  as  regards  the  office  of  lieu- 
tenant-governor.2   British  Columbia  and  Manitoba  accordingly 
availed  themstives  of  their  constitutional  privileges,  and  there 
is  now  only  one  house,  a  legislative  assembly,  elected  by  the 
people  in  those  provinces. 

In  all  the  provinces,  at  the  present  time,  there  is  a  very  com- 
plete system  of  local  self-government,  administered  under  the 
authority  of  the  British  North  America  Act,  and  by  means  of 
the  following  machinery :  , 

A  lieutenant-governor  appointed  by  the  governor-general 

in  council ; 

An  executive  or  advisory  council,  responsible  to  the  legis- 
lature ; 

A  legislature,  cons'^ting  of  an  elective  house  in  all  cases, 
with  the  addition  of  an  upper  chamber  appointed  by  the 
crown  in  three  provinces,  and  elected  by  the  people,  in  one ; 


^  For  constitutions  of  provinces  admitted  since  1867,  see  for  Manitoba, 
Can.  Stat.,  33  Vict.,  c  3 ;  Man.  Stat.,  39  Vict.,  c.  28 ;  Imp.  Stat.  34, 35  Vict., 
c.  28,  sec.  6.— British  Columbia,  Can.  Stat,  for  1872,  p.  34,  B.  C.  Con.  Stat., 
c.  42.— Prince  Edward  Island,  Can.  Stat,  of  1873,  p.  11. 

'Seewtpro,  p.  47. 


583] 


Federal  Government  in  Canada. 


127 


A  provincial  judiciary,  composed  of  several  courts,  the 
judges  of  whom  are  appointed  and  paid  by  the  dominion  gov- 
ernment ; 

A  civil  service,  with  officers  appointed  by  the  provincial  gov- 
ernment, holding  office,  as  a  rule,  during  pleasure  and  not 
removed  for  political  reasons ; 

A  municipal  system  of  mayors,  wardens,  reeves  and  coun- 
cillors, to  provide  for  the  purely  local  requirements  of  the  cities, 
towns,  townships,  parishes  and  counties  of  every  province. 

The  lieutenant-governor  is  appointed  by  the  governor- 
general  in  council,  by  whom  he  can  be  dismissed  for  "  cause 
assigned"  which,  under  the  constitution  must  be  communi- 
cated to  parliament.*  He  is  therefore  an  officer  of  the  do- 
minion as  well  as  the  head  of  the  executive  council  and 


I': 


'  B.  N.  A.  Act,  1867,  sec.  58.  For  each  province  there  shall  be  an  officer, 
styled  the  lieutenant-governor,  appointed  by  the  governor-general  in  coun- 
cil by  instrument  under  the  great  seal  of  Canada. 

59.  A  lieutenant-governor  shall  hold  office  during  the  pleasure  of  the 
governor-general;  but  any  lieutenant-governor  appointed  after  the  com- 
mencement of  the  first  session  of  the  parliament  of  Canada,  shall  not  be 
removable  within  five  years  from  his  appointment,  except  for  cause  assigned, 
wLloh  shall  be  communicated  to  him  in  writing  within  one  month  after  the 
order  for  his  removal  is  made,  and  shall  be  communicated  by  message  to 
the  senate  and  to  the  house  of  commons  within  one  wciek  thereafter  if  the 
parliament  is  then  sitting,  and  if  not  then  within  one  week  after  the  com- 
mencement of  the  next  session  of  the  parliament. 

60.  The  salaries  of  the  lieutenant-governors  shall  be  fixed  and  provided 
by  the  parliament  of  Canada. 

61.  Every  lieutenant-governor  shall,  before  assuming  the  duties  of  his 
office,  make  and  subscribe  before  the  governor-general  or  some  person 
authorized  by  him,  oaths  of  allegiance  and  office  similar  to  those  taken  by 
the  governor-general. 

62.  The  provisions  of  this  act,  referring  to  the  lieutenant-governor,  extend 
and  apply  to  the  lieutenant-governor  for  the  time  being  of  each  province 
or  other,  the  chief  executive  officer  or  administrator  for  the  time  being 
carrying  on  the  government  of  the  province  by  whatsoever  title  he  is 
designated. 

67.  The  governor-general  in  council  may,  firom  time  to  time,  appoint  an 
administrator  to  execute  the  office  and  functions  of  lieutenant-governor 
during  his  absence,  illness  or  other  inability. 


m 


fl 


128 


Federal  OovemmerU  in  Canada, 


[584 


possesses,  within  his  constitutional  sphere,  all  the  authority  of  a 
lieutenant-governor  before  1867.  The  essential  difference  now 
in  his  position  arises  from  the  fact  that  his  responsibility  is  to 
the  government  which  appoints  him,  just  as  these  high  officials 
before  the  confederation  were  responsible  immediately  to  the 
imperial  authorities.  He  acts  in  accordance  with  the  rules 
and  conventions  that  govern  the  relations  between  the  governor- 
general  and  his  privy  council.  He  appoints  his  executive 
council  and  is  guided  by  their  advice  so  long  as  they  retain  the 
confidence  of  the  legislature.  He  has  "an  unquestionable 
constitutional  right  to  dismiss  his  ministers,  if,  from  any  cause, 
he  feels  it  incumbent  upon  him  to  do  so.  In  the  exercise  of 
this  right,  as  of  any  other  of  his  functions,  he  should,  of  course, 
maintain  that  impartiality  towards  rival  political  parties  which 
is  essential  to  the  proper  performance  of  the  duties  of  his  office ; 
and  for  any  action  he  may  take  he  is  (under  the  fifly-ninth 
section  of  the  British  North  America  Act)  directly  responsible 
to  the  governor-general."  ^  But  it  is  quite  clear  that  while  the 
lieutenant-governor  can  dismiss  his  ministers,  it  is  a  right  only 
to  be  exercised  for  a  cause  fully  justified  by  the  practice  of 
sound  constitutional  government ;  and  he  should  not  for  per- 
sonal or  political  reasons,  be  induced  to  withdraw  his  confi- 
dence from  a  ministry  which  has  an  unequivocal  majority  in 
the  popular  branch,  unless  indeed  there  should  arise  some 
grave  public  emergency  which  would  compel  him  to  call  upon 
another  set  of  advisers,  and  ask  tham  to  support  him  and  appeal 
to  the  people  for  their  judgment  on  the  question  at  issue. 
Doubts  have  been  raised  from  time  to  time,  though  rarely  now, 
compared  with  the  earlier  years  of  the  working  of  our  system, 
whether  the  lieutenant-governor  of  a  province  represents  the 
crown  as  before  the  union  of  1867,  but  it  is  generally  admitted 
that  in  the  discharge  of  all  the  executive  and  administrative 
functions  that  devolve  constitutionally  upon  him  and  require 


'  Despatch  of  secretary  of  state  for  the  colonies  in  Lientenant-Governor 
Letellier's  case,  1879,  Commons  Papers  1878-79,  c.  2445,  pp.  127, 128. 


586] 


Federal  Oovemment  in  Canada, 


129 


the  interposition  of  the  crown  in  the  province,  the  lieutenant- 
governor  has  all  the  necessary  authority. 

In  various  cases  that  have  come  before  the  highest  courts 
in  Canada  and  in  England,  in  which  the  point  has  been 
ai^ued,  the  weight  of  authority  now  goes  to  sustain  the 
general  proposition  I  have  laid  down.*  In  one  very  im- 
portant argument  that  was  heard  before  the  courts  of  Canada 
and  finally  before  the  judicial  committee  of  the  privy  council, 
the  question  arose  whether  it  is  the  provincial  or  the  dominion 
government  that  is  entitled  to  the  estates  of  persons  dying 
intestate  and  without  heirs.  As  every  legal  student  knows, 
property  which  has  no  owner,  escheats  to  the  crown,  in  proper 
accordance  with  the  maxim  of  feudal  law,  and,  in  our  day, 
that  means  it  becomes  the  property  of  the  people.  One  able 
counsel  for  the  provincial  authorities  in  this  case  laid  special 
emphasis  on  the  argument  that  both  from  the  legislative  and 
executive  point  of  view  the  royal  prerogatives,  which  in  Eng- 
land are  not  the  personal  appanage  of  the  sovereign,  but  are 
the  property  of  the  people,  and  which  the  sovereign  holds  in 
trust  to  exercise  them  in  the  interests  of  the  British  nation, 
are  equally  exercised  in  the  provinces  of  the  queen,  not  more, 
however,  to  her  personal  profit  than  in  the  mother  country, 
but  for  the  people  of  the  provinces,  with  respect  to  whom 
these  prerogatives  have  not  lost  their  character  of  a  trust,  and 
that,  not  being  able  to  exercise  them  herself,  she  has  delegated 
their  exercise  to  the  lieutenant-governors,  who  are  her  man- 
dataries.* The  judicial  committee  declared  by  implication 
that  escheated  lands  in  any  province  went  to  the  provinc^il 
and  not  to  the  dominion  government.  Their  Lordships  dwelt 
on  the  clause  109,^  in  the  constitutional  act  of  1867,  which 
enacts  that  "  all  lands,  mines,  minerals  and  royalties  "  belong- 


li 


m 


^  See  opinion  of  Chief  Justice  Ritchie  in  case  of  Mercer  V8.  the  attorney- 
general  of  Ontario.    Sap.  Court  Rep.,  Vol.  V,  pp.  636,  638, 643. 
'  Attorney-general  (now  judge)  Loranger.    Sup.  Court  Rep.,yol. V,  p.  608. 
'  See  Bourinot's  Manual  of  Constitutional  History,  pp.  147-151. 


130 


Federal  Oovemment  in  Qmada. 


[586 


I '; 


ing  to  the  provinces  at  the  time  of  the  union  shall  continue 
to  belong  to  those  provinces.  The  real  question,  in  their 
opinion,  was  as  to  the  effect  of  the  words,  "lands,  mines, 
minerals  and  royalties"  taken  together.  The  mention  of 
"mines"  and  "minerals"  in  this  context  was  not  enough 
to  deprive  the  word  "royalties"  of  what  otherwise  would 
have  been  its  proper  force.  The  general  subject  of  the  whole 
section  is  "  of  a  high  jwlitical  nature,"  it  is  "  it  e  attribution 
of  royal  territorial  rights,  for  purposes  of  revenue  and  govern- 
ment, to  the  provinces  in  which  they  are  situate  or  arise."  * 
This  decision  in  its  entirety  is  properly  regarded  as  decidedly 
in  the  direction  of  strengthening  provincial  jurisdiction  on  the 
point  I  have  beeri  considering. 

The  executive  council,  which  is  the  name  now  given  to  the 
administration  of  each  province,  a  name  borrowed  from  the 
old  provincial  (systems  of  government,'  comprises  from  seven 
members  to  two  or  three  in  British  Columbia,  holding,  as  a 
rule,  various  provincial  offices  as  heads  of  departments.  Their 
titles  vary  in  some  cases,  but  generally  there  is  in  every  execu- 
tive council  an  attorney-general,  a  provincial  secretary,  and  a 
commissioner  of  lands.  In  the  cabinet  of  Ontario  there  is  a 
minister  of  education,  since  that  branch  of  the  public  service 
is  of  exceptional  importance  in  that  province  in  view  of  the 
great  expenditure  and  large  number  of  common  and  grammar 
schools,  CO.  -giate  institutes,  normal  and  model  schools,  besides 
the  provincial  university  in  Toronto.  All  the  members  of  the 
executive  council,  who  hold  departmental  and  salaried  offices, 
must  vacate  their  seats  and  be  reelected  as  in  the  case  of  the 
dominion  ministry.  The  principle  of  ministerial  responsibility 
to  the  lieutenant-governor  and  to  the  legislature  is  observed  in 
the  fullest  sense.^ 


1  Legal  News,  Vol.  VI,  p.  244. 

'The  same  name  was  applied  to  the  old  councils  of  the  thirteen  colonies. 

'6.  N.  A.  Act,  1867,  sec.  63.    The  executive  council  of  Ontario  and 

Quebec  shall  be  composed  of  such  persons  as  the  lieutenant-governor  from 


687] 


Federal  Oovemment  in  Canada. 


131 


In  ray  third  lecture,  I  showed  the  importance  of  the  powers 
granted  by  the  British  North  America  Act  of  1867  to  the 
provincial  legislatures,  and  gave  a  brief  statement  of  what  I 
believed,  from  a  study  of  the  best  authorities,  to  be  the  true 
relations  between  those  bodies  and  the  dominion  government. 
It  is,  therefore,  oidy  necessary  for  rae  to  consider  here  some 
features  of  the  constitution  of  these  legislatures,  the  election 
of  members,  the  trial  of  controverted  elect'  nis,  the  prevention 
of  bribery  and  corruption,  and  the  great  variety  of  subjects 
that  fall  within  their  legislative  jurisdiction. 


time  to  time  thinks  fit,  and  in  the  first  instance  of  the  following  officers, 
namely :  the  attorney -general,  the  secretary  and  registrar  of  the  province, 
the  treasurer  of  the  province,  the  commissioner  of  crown  lands,  and  the 
commissioner  of  agriculture  and  public  works ;  with,  in  Quebec,  the  speakex 
of  the  legislative  council  and  the  solicitor-general. 

64.  Tho  constitution  of  the  executive  authority  in  each  of  the  provinces 
of  Nova  Scotia  and  New  Brunswick  shall,  subject  to  the  provisions  of  this 
act,  continue  as  it  exists  at  the  union  until  altered  under  the  authority  of 
this  act. 

65.  All  powers,  authorities,  and  functions  which  under  any  act  of  the 
parliament  of  Great  Britain,  or  of  the  parliament  of  the  united  kingdom  of 
Great  Britain  and  Ireland,  or  of  the  legislature  of  Upper  Canada,  Lower 
Canada,  or  Canada,  were  or  are  before  or  at  the  union  Tested  in  or 
exercisable  by  the  respective  governors  or  lieutenant-governors  of  those 
provinces,  with  the  advice,  or  with  the  advice  and  consent  of  the  respective 
executive  councils  thereof,  or  in  conjunction  with  those  councils  or  with 
any  number  of  members  thereof,  or  by  those  governors  or  lieutenant-gov- 
ernors individually  shall,  as  far  as  the  same  are  capable  of  being  exercised 
after  the  union  in  relation  to  the  government  of  Ontario  and  Quebec, 
respectively,  be  vested  in  and  shall  or  may  be  exercised  by  the  lieutenant- 
governor  of  Ontario  and  Quebec,  respect' vely,  with  the  advice  or  with  the 
advice  and  consent  of,  or  in  conjunction  with  the  respective  executive  coun- 
cils or  any  members  thereof,  or  by  the  lieutenant-governor  individually,  as 
the  case  requires,  subject  nevertheless  (except  with  respect  to  such  as 
exists  under  the  acts  of  the  parliament  of  Great  Britain  or  of  the  parliament 
of  the  united  kingdom  of  Great  Britain  and  Ireland)  to  be  abolished  or 
altered  by  the  respective  legislatures  of  Ontario  and  Quebec. 

66.  The  provisions  of  this  act  referring  to  the  lieutenant-governor  in 
council  shall  be  construed  as  referring  to  the  lieutenant-governor  of 
the  province  acting  by  and  with  the  advice  of  the  executive  council 
thereof. 


Wi}^  ■ 


132 


Federal  Government  in  Canada. 


[688 


The  legislatures  have  a  duration  of  four  years — in  Quebec, 
of  five — unless  sooner  dissolved  by  the  lieutenant-governor. 
They  are  governed  by  the  constitutional  principles  that  obtain 
at  Ottawa.  The  lieutenant-governor  opens  and  prorogues  the 
assembly,  as  in  Ontario,  Manitoba  and  British  Columbia,  or 
the  assembly  and  the  legislative  council  in  the  other  provinces, 
with  the  usual  formality  of  a  speech.  A  speaker  is  elected 
by  the  majority  in  each  assembly,  or  is  appointed  by  the  crown 
in  the  upper  chamber.*  The  rules  and  usages  that  govern 
their  proceedings  are  derived  from  those  of  England,  and  do 
not  differ  in  any  material  respect  from  the  procedure  in  the 
dominion  parliament.  The  rules  with  respect  to  private  bill 
legislation  are  also  equally  restrictive.  The  British  North 
America  Act  applies  to  the  speakership  of  the  assemblies  the 
provisions  that  it  enacts  with  respect  to  the  speakership  of  the 
commons.  The  legislatures  of  Ontario  and  Quebec,  like  the 
dominion  parliament,  must  sit  once  every  twelve  months ;  but 
apart  from  the  existing  usage  that  supply  has  to  be  voted 
every  twelve  months,  the  act  demands  an  annual  session.  None 
of  the  provinces  have  yet  adopted  biennial  sessions  in  imita- 
tion of  the  very  general  practice  of  the  state  legislatures.    Not 


'  B.  N.  A.  Act,  1867 : 

1. — Ontario. 

Sec.  69.  There  shall  be  a  legislature  for  Ontario,  consisting  of  the  lieu- 
tenant-governor and  of  one  house  styled  the  legislative  assembly  of  Ontario. 

70.  The  legislative  assembly  of  Ontario  shall  be  composed  of  eighty-two 
members,  to  be  elected  to  represent  the  eighty-two  electorpL  districts  set 
forth  in  the  first  schedule  to  this  act. 

2. — Quebec. 

71.  There  shall  be  a  legislature  for  Quebec,  consisting  of  the  lieutenant- 
governor  and  two  houses,  styled  the  legislative  council  of  Quebec,  and  the 
legislative  assembly  of  Quebec. 

72.  The  legislative  council  of  Quebec  shall  be  composed  of  twenty-four 
members,  to  be  appointed  by  the  lieutenant-governor,  in  the  queen's  name, 
by  instrument  under  the  great  seal  of  Quebec,  one  being  appointed  to  repre- 
sent each  of  the|;twenty-four  electoral  divisions  of  Lower  Canada  in  this  act 
referred  to,  and  each  holding  office  for  the  term  of  his  life,  unless  the  legis- 
lature of  Quebec  otherwise  provides,  under  the  provisions  of  this  act. 


689] 


Federal  Government  in  Qmada. 


133 


only  does  the  British  practice  of  voting  annual  estimates  stand 
in  the  way  of  this  change,  which  would  require  an  amendment 
of  the  provincial  constitutions,  but  it  would  be  hardly  accept- 
able to  an  opposition  in  a  legislature,  since  it  would  greatly 
strengthen  an  administration  and  lessen  their  responsibilities 
to  the  assembly.  In  the  United  States  there  is  no  cabinet 
with  seats  in  the  assemblies  dependent  on  the  vote  of  the 
majority,  and  biennial  sessions  have  their  advantages,  but  it 
would  be  in  this  country  a  radical  change  hardly  consistent 
with  the  principles  of  responsible  government. 


73.  T},  3  quali^cations  of  the  legislative  councillors  of  Quebec  shall  be  the 
same  as  those  of  the  senators  for  Quebec. 

74.  The  place  of  a  legislative  councillor  of  Quebec  shall  become  vacant  in 
the  cases,  mutatis  mutandis,  in  which  the  place  of  senator  becomes  vacant.     • 

75.  When  a  vacancy  happens  in  the  legislative  council  of  Quebec  by 
resignation,  death  or  otherwise,  the  lieutenant-governor,  in  the  queen's 
name,  by  instrument  under  the  great  seal  of  Quebec,  shall  appoint  a  fit 
and  qualified  person  to  fill  the  vacancy. 

76.  If  any  question  arises  respecting  the  qualification  of  a  legislative 
councillor  of  Quebec,  or  a  vacancy,  in  the  legislative  council  of  Quebec,  the 
same  shall  be  heard  and  determined  by  the  legislative  council. 

77.  The  lieutenant-governor  may,  from  time  to  time,  by  instrument  under 
the  great  seal  of  Quebec,  appoint  a  member  of  the  legislative  council  of 
Quebec  to  be  speaker  thereof,  and  may  remove  him  and  appoint  another 
in  his  stead. 

78.  Until  the  legislature  of  Quebec  otherwise  provides,  the  presence  of  at 
least  ten  members  of  the  legislative  council,  including  the  speaker,  shall  be 
necessary  to  constitute  a  meeting  for  the  exercise  of  its  powers. 

79.  Questions  arising  in  the  legislative  council  of  Quebec,  shall  be  decided 
by  a  majority  of  voices,  and  the  speaker  shall,  in  all  cases,  have  a  vote,  and 
when  the  voices  are  equal  the  decision  shall  be  deemed  to  be  in  the  negative. 

80.  The  legislative  assembly  of  Quebec  shall  be  composed  of  sixty-five 
members  to  be  elected  to  represent  the  sixty-five  electoral  divisions  or  dis- 
tricts of  Lower  Canada,  in  this  act  referred  to,  subject  to  alteration  thereof 
by  the  legislature  of  Quebec ;  provided  that  it  shall  not  be  lawful  to  present 
to  the  lieutenant-governor  of  Quebet:  for  assent,  any  bill  for  altering  the 
limits  of  any  of  the  electoral  divisions  or  districts  mentioned  in  the  second 
schedule  to  this  act,  unless  the  second  and  third  readings  of  such  bill  have 
been  passed  in  the  legislative  assembly,  with  the  concurrence  of  the  ma- 
jority of  the  members  representing  all  those  electoral  divisions  or  districts, 
and  the  assent  shall  not  be  given  to  such  bill  unless  an  address  had  been 


134 


Federal  Government  in  Canada, 


[590 


The  number  of  members  varies  from  ninety-one  in  the  legis- 
lature of  the  most  populous  province  of  Ontario  to  twenty-seven 
in  British  Columbia,  with  the  smallest  population.  Members 
of  the  legislative  councils,  where  they  exist,  have  a  property 
qualification,  except  in  Prince  Edward  Island ;  but  the  mem- 
bers of  the  assemblies  need  only  be  citizens  of  Canada  and  of 
the  age  of  twenty-one  years.  They  are  elected  in  Ontario  on 
a  franchise  which  is  manhood  suflFrage,  qualified  only  by  resi- 
dence and  citizenship,  and  the  conditions  of  the  suffrage  are 
hardly  less  liberal  in  nearly  all  the  provinces,  and  vary  little 


presented  by  the  legislative  assembly  to  the  lieutenant-governor  stating  that 
it  has  been  so  passed. 

3. — Ontakio  and  Quebec. 

81.  The  legislatures  of  Ontario  and  Quebec  respectively  shall  be  called 
together  not  later  than  six  months  after  the  union. 

82.  The  lieutenant-governor  of  Ontario  and  of  Quebec  shall,  from  time 
to  time,  in  the  Queen's  name,  by  instrument  under  the  great  seal  of  the 
province,  summon  and  call  together  the  legislative  assembly  of  the  province. 

83.  Until  the  legislature  of  Ontario  or  Quebec  otherwise  provides,  a  per- 
son accepting  or  holding  in  Ontario  or  in  Quebec,  any  office,  commission,  or 
employment,  permanent  or  temporary,  at  the  nomination  of  the  lieutenant- 
governor,  to  which  an  annual  salary,  or  any  fee,  allowance,  emolument  or 
profit  of  any  kind,  or  amount  whatever,  from  the  province  is  attached,  shall 
not  be  eligible  as  a  member  of  the  legislative  assembly  of  the  respective 
province,  nor  shall  he  sit  or  vote  as  such ;  but  nothing  in  this  section  shall 
make  ineligible  any  person  being  a  member  of  the  executive  council  of  the 
respective  province,  or  holding  any  of  the  following  offices,  that  is  to  say : 
the  offices  of  attorney-general,  secretary  and  registrar  of  the  province, 
treasurer  of  the  province,  commissioner  of  crown  lands  and  commissioner  of 
agriculture,  and  public  works;  and,  in  Quebec,  solicitor-general,  or  shall  dis- 
qualify him  to  sit  or  vote  in  the  house  for  which  he  is  elected,  provided  he 
is  elected  while  holding  such  office. 

84.  Until  the  legislatures  of  Ontario  and  Quebec  respectively  otherwise 
provide,  all  laws  which  at  the  union  are  in  force  in  those  provinces  respect- 
ively, relative  to  the  following  matters  or  any  of  them,  namely: — the  quali- 
fications and  disqualifications  of  persons  to  be  elected  to  sit  or  vote  as  mem- 
bers of  the  assembly  of  Canada,  the  qualifications  or  disqualifications  of 
voters,  the  oaths  to  be  taken  by  voters,  the  returning  officers,  their  powers 
and  duties,  the  proceedings  at  elections,  the  periods  during  which  such 
elections  may  be  continued,  and  the  trial  of  controverted  elections  and  the 
proceedings  incident  thereto,  the  vacating  of  the  seats  of  members,  and  the 


691] 


Federal  Oovemment  in  Canada. 


135 


from  each  other — ^the  province  of  Quebec  imposing  in  a  few 
particulars  the  most  restrictions  and  showing  a  decided  indis- 
position to  adopt  universal  suffrage.  Members  are  paid  an 
indemnity  which  varies  from  $800  in  Quebec  to  $172  in 
Prince  Edward  Island,  with  a  small  mileage  rate,  in  most 
cases,  to  pay  travelling  expenses.  The  laws  providing  for  the 
independence  of  the  legislature  and  fcx-  the  prevention  of 
bribery  and  corruption  are  fully  as  strict  as  those  which  are 
in  force  in  the  case  of  the  dominion  elections.  In  all  cases 
the  courts  are  the  tribunals  for  the  trial  of  controverted 


issuing  and  execution  of  new  writs  in  case  of  seats  vacated  otherwise  than 
by  dissolutioii,  shall  respectively  apply  to  elections  of  members  to  serve  in 
the  respective  legislative  assemblies  of  Ontario  and  Quebec : 

Provided,  that  until  the  legislature  of  Ontario  otherwise  provides  at  any, 
election  for  a  member  of  the  legislative  assembly  of  Ontario  for  the  district 
of  Algoma,  in  addition  to  persons  qualified  by  the  law  of  the  province  of 
Canada  to  vote,  every  male  British  subject  aged  twenty-one  years  or  up- 
wards, being  a  householder,  shall  have  a  vote. 

85.  Every  legislative  assembly  of  Ontario  and  every  legislative  assembly 
of  Quebec  shall  continue  for  four  years  from  the  day  of  the  return  of  the 
writs  for  choosing  the  same  (subject,  nevertheless,  to  either  the  legislative 
assembly  of  Ontario  or  the  legislative  assembly  of  Quebec  being  sooner 
dissolved  by  the  lieutenant-governor  of  the  province),  and  no  longer.  [Ex- 
tended as  respects  Quebec  to  five  years  by  Quebec  Stat.  44-45  Vict.,  c.  7.] 

86.  There  shall  be  a  session  of  the  legislature  of  Ontario  and  of  thai  cf 
Quebec  once  at  least  in  every  year,  so  that  twelve  months  shall  not  inter- 
vene between  the  last  sitting  of  the  legislature  in  each  province  in  one  ses- 
sion and  its  first  sitting  in  the  next  session. 

87.  The  following  provisions  of  this  act  respecting  the  house  of  commons 
of  Canada,  shall  extend  and  a])ply  to  the  legislative  assemblies  of  Ontario 
and  Quebec,  that  is  to  say—  ^ne  provisions  relating  to  the  election  of  a 
speaker  originally  and  on  vacancies,  the  duties  of  the  speaker,  the  absence 
of  the  speaker,  the  quorum,  and  the  mode  of  voting,  as  if  those  provisions 
were  here  reenacted  and  made  applicable  in  terms  to  each  such  legislative 
assembly. 

4. — Nova  Scotia  and  New  Bbunswick. 

88.  The  constitution  of  the  legislature  of  each  of  the  provinces  of  Nova 
Scotia  and  New  Brunswick  shall,  subject  to  the  provisions  of  this  act,  con- 
tinue as  it  exists  at  the  union  until  altered  under  the  authority  of  this  act ; 
and  the  house  of  assembly  of  New  Brunswick  existing  at  the  passing  of  this  act 
shall,  unless  sooner  dissolved,  continue  for  the  period  for  which  it  was  elected. 


136 


.Federal  Oovemment  in  Canada. 


[592 


w 


n 


elections.  It  is  hardly  necessary  to  say  that  the  demand  upon 
the  classes  of  men  disposed  to  give  up  their  time  to  the  public 
service  is  very  considerable,  when  we  reflect  upon  the  large 
representation  required  for  the  parliament  and  legislatures, 
apart  from  the  various  municipal  councils  in  the  several 
provinces.  It  has  been  questioned  whether  it  was  quite  wise 
at  the  inception  of  confederation  to  limit  the  services  of  capable 
men  to  one  legislative  body,  in  other  words,  to  prevent  dual 
representation.  Be  this  as  it  may,  the  legislatures  particularly 
do  not  appear  in  any  way  inclined  to  have  their  members  under 
the  influences  of  the  dominion  parliament,  but  prefer  being 
entirely  independent  of  all  other  legislative  authorities.  It  is 
only  in  the  Quebec  legislative  council  that  a  meml)er  can  also 
sit  in  the  senate,  but  this  privilege  is  epjoyed  only  by  one  or 
two  men  and  is  very  different  from  dual  representation  in  two 
representative  bodies.  It  is  obvious,  so  far,  that  while  the 
house  of  commons  naturally  attracts  the  more  ambitious  men, 
since  it  offers  them  greater  prizes  and  a  wider  scope  for  their 
ambition,  yet  the  assemblies  are  filled,  for  the  most  part,  by  men 
of  excellent  business  habits  and  practical  experience,  and,  in 
not  a  few  cases,  of  conspicuous  talent.  As  much  space  is 
given  in  the  leading  journals  to  the  debates  of  the  legislatures 
as  to  those  of  the  parliament  at  Ottawa,  and  it  must  necessarily 
be  so  in  view  of  the  importance  and  variety  of  the  questions 
that  come  every  session  under  their  cognizance.  The  very 
system  which  makes  a  government  responsible  to  and  depend- 
ent on  the  legislature  for  its  continuance  in  power  must  to  a 
great  extent  explain  why  these  bodies  exercise  greater  influ- 
ence than  do  similar  authorities  in  the  American  states,  even 
with  the  right  of  electing  senators  to  congress. 

The  subjects  that  come  under  the  purview  of  the  legisla- 
tures, from  session  to  session,  are  multifarious,  so  extensive  is 
the  scope  of  their  legislative  powers.  The  very  section  giving 
them  jurisdiction  over  property  and  civil  rights  necessarily 
entails  legislative  responsibilities  which  touch  immediately 
every  man,  woman  and  child  in  the  province. 


693] 


FedercU  Oovemment  in  Canada. 


137 


If  we  take  up  any  volume  of  the  statutes  of  a  province,  of 
Ontario  for  instance,  we  shall  see  the  truth  of  the  observation 
I  made  in  the  course  of  the  third  lecture,  that  provincial  leg- 
islation in  every  way  more  nearly  affects  our  daily  life  and 
interests  as  citizens  of  a  community  than  even  the  legislation 
of  the  dominion  parliament.    In  the  statutes  for  1888  we  find 
laws  relative  to  probate  and  letters  of  administration,  execu- 
tions, mortgages,  sales  of  chattels,  solemnization  of  marriage, 
married  women's  real  estate,  benevolent,  provident  and  other 
societies,  liquor  licenses,  frauds,  closing  of  shops  and  hours 
of  labor,  prevention  of  accidents  by  fires  in  hotels  and  other 
places  and  public  buildings,  protection  of  game  and  fur-bear- 
ing animals,  protection  and  reformation  of  neglected  children, 
agricultural  exhibitions,  besides  a  large  number  of  private  and 
local  acts  for  the  incorporation  of  insurance  and  other  compa-. 
nies,  for  the  incorporation  of  towns,  for  the  issue  of  deben- 
tures for  certain  local  purposes,  and  the  multiform  objects 
which  the  constitution  places  under  provincial  control.     Then 
every  session  there  is  the  distribution  of  the  public  moneys, 
which,  as  in  the  dominion  parliament,  are  voted  in  the  com- 
mittee of  supply,  and  included  in  an  appropriation  act.    As  I 
have  shown,*  the  provincial  funds  are  provided  in  a  great 
measure  from  the  dominion  subsidies,  the  sale  of  public  lands, 
timber  licenses,  and  mining  royalties,  but  each  province  has  a 
potential  right  of  direct  taxation,  which  so  far  has  never  been 
directly  exercised  by  the  legislature  itself.     In  the  case  of  a 
wealthy  province  like  Ontario,  with  a  surplus  revenue,  the 
public  expenditures  are  very  comprehensive,  and  illustrate  the 
importance  of  the  interests   involved.     In  1888  there  was 
required  for  civil  government,  $198,745;  administration  of 
justice,  $366,476;  education,  $581,412;  maintenance  of  public 
institutions,  $705,664;  agriculture,  $141,931;  hospitals  and 
charities,  $113,686;  maintenance  and  repairs  of  government 
and    departmental    buildings,  $641,176;   public    buildings, 


'  See  «upra,  p.  73. 

10 


138 


Federal  Government  in  Canada. 


[594 


r 


$383,062;  colonization  roads  and  public  works,  $167,146, 
the  total  amount  of  expenditure  being  $3,205,804.  From 
time  to  time  large  railway  subsidies  are  granted  for  the  con- 
struction of  railways  within  the  provincial  limits,  and  this  has 
been  done  lavishly  in  the  province  of  Quebec.  The  total 
amount  of  subsidies  voted  by  all  the  provinces  up  to  1887  for 
this  purpose  was  $19,137,720.^ 

The  control  over  provincial  legislation  is  the  power  of  veto 
allowed  to  the  dominion  government,  and  the  judgment  of  the 
courts  in  cases  submitted  to  them  in  due  course  of  law ;  mat- 
ters already  considered  in  the  review  of  the  federal  system. 
No  authority  is  given,  however,  as  is  the  case  in  some  Ameri- 
can states  to  submit  a  question  of  constitutional  jurisdiction 
to  the  provincial  courts,  though,  as  I  have  already  shown,  such 
a  reference  can  be  made  to  the  supreme  court  of  Canada.^  In 
the  few  states  where  such  a  constitutional  provision  exists,  the 
judges  regard  the  reference  as  calling  upon  them  simply  to 
act  in  an  advisory  capacity  and  guard  themselves  from  being 
bound  by  their  opinion,  in  case  the  same  question  comes  up 
for  argument  and  judgment  in  due  process  of  law.'  The  same 
principle,  if  I  mistake  not,  has  been  laid  down  by  the  judges 
of  the  supreme  court  of  Canada,  when  they  have  been  called 
upon  to  give  an  opinion  on  private  bill  legislation  of  parlia- 
ment and  other  constitutional  points  of  controversy.  The 
practice  has  decided  advantages  if  it  can  be  carried  out,  and 


^  Canadian  Handbook,  by  George  Johnson,  p.  92. 

'See  «upra,  p.  66. 

'  In  Maine,  New  Hampshire,  Massachusetts,  Florida,  and  Rhode  Island 
(Cooley,  Constitutional  Limitations,  pp.  51,  52)  "  the  legislative  department 
has  been  empowered  by  the  constitution  to  call  upon  the  courts  for  their 
opinion  upon  the  constitutional  validity  of  a  proposed  law,  in  order  that,  if 
it  be  adjudged  without  warrant,  the  legislature  may  abstain  from  enacting 
it."  This  eminent  authority  doubts  if  such  decisions  can  be  entirely  satis- 
factory, since  they  are  made  without  the  benefit  of  argument  at  the  bar. 
They  must,  however,  more  or  less  operate  as  a  check  upon  careless  legisla- 
tion and  are  entitled  to  every  consideration  as  coming  from  reflective  judicial 
minds. 


wma 


696] 


Fe'c<al  Government  in  Canada. 


139 


it  would  be  well  to  consider  whether  it  cannot  be  adopted  in 
the  case  of  the  provincial  courts.  Many  cases,  however,  con- 
stantly arise  in  the  course  of  law,  with  respect  to  the  compe- 
tency of  the  legislature  to  enact  certain  statutes ;  and  every 
year  sees  the  British  North  America  Act  made  clearer,  and 
supplemented  by  a  number  of  valuable  decisions  which  prac- 
tically enter  into  our  constitutional  system  and  make  it  more 
intelligible  and  workable. 

It  is  not  necessary  to  dwell  at  greater  length  on  the  power 
of  disallowance  than  I  have  already  done  in  the  third  lecture, 
but  there  is  one  question  of  some  interest  which  requires  a  few 
words  of  explanation,  or  rather  of  comment,  since  it  is  not 
quite  intelligible  on  sound  constitutional  principles.  The 
British  North  America  Act  gives  the  lieutenant-governor,  as 
well  as  the  governor-general,  the  power  to  "reserve"  and  also' 
to  "  veto  "  a  bill  when  it  comes  before  him.*  The  power  of 
reserving  bills  is  exercised  by  the  governor-general  in  very 
exceptional  cases  affecting  imperial  interests,  but  there  is  no 
instance  in  our  parliamentary  history  since  the  concession  of 
responsible  government  of  the  exercise  of  the  veto — a  royal 
prerogative,  in  fact,  not  exercised  even  in  England  since  the 
days  of  Queen  Anne.  Lieutenant-governors  not  infrequently 
reserve  bills,  in  all  the  provinces,  for  the  consideration  of  the 
governor-general  in  council ;  and  this  is  constitutionally  justi- 
fiable; but  the  same  functionaries  in  the  maritime  sections 
have  occasionally  vetoed  bills  of  their  respective  legisla- 
tures. Their  legal  right  is  unquestionable,  but  it  is  a  right 
clearly  quite  inconsistent  with  the  general  principles  of  British 
constitutional  government  which  should  govern  us  in  all 
cases. 

In  the  United  States,  where  the  power  of  veto  is  given  to 
the  president,  and  to  all  the  governors  of  the  states,  with  only 
four  exceptions,  the  cabinet  or  executive  officers  have  no 
responsibility  whatever  in  matters  of  legislation,  and  the  power 


I 


^Secs.  55,  66,  90. 


140 


Federal  Oovemment  in  Oanada, 


[596 


generally  operates  as  a  useful  check  on  the  legislatures,  which 
otherwise  would  be  left  practically  without  any  control  on 
their  proceedings.  In  the  Canadian  provinces,  however,  the 
case  is  very  different,  for  the  ministry  in  each  is  responsible  to 
the  house  and  to  the  lieutenant-governor  for  legislation.  If 
any  bill  should  pass  the  houses  despite  their  opposition  as  an 
administration,  it  is  clear  that  they  have  more  or  less,  accord- 
ing to  the  nature  of  the  measure,  forfeited  the  confidence  of 
the  people's  representatives,  and  it  would  be  a  virtual  evasion 
of  their  ministerial  responsibility,  for  them  at  the  last  moment 
to  advise  the  lieutenant-governor  to  intervene  in  their  behalf 
and  exercise  his  prerogative.  He  might  well  question  their 
right  to  advise  him  at  all,  since  they  had  shown  they  had  not 
the  support  of  the  legislature  of  which  they  were  a  committee. 
In  Ontario  and  Quebec  no  ministry  has  ever  occupied  so 
anomalous  a  position,  and  the  only  explanation  that  can  be 
offered  for  the  existence  of  the  veto  in  the  other  provinces  is 
that  by  carele&sness  or  ignorance,  governments  have  per- 
mitted legislation,  which  the  lieutenant-governor  has  found  to 
be  beyond  the  competency  of  the  legislature,  or  otherwise  very 
objectionable,  and  that  he  has  been  forced  to  call  the  attention 
of  his  cabinet  to  the  fact  and  ask  their  advice.  An  executive 
council  has,  under  these  circumstances  (for  I  am  speaking  from 
authoritative  information  on  this  interesting  point)  felt  itself 
bound  to  accept  the  situation  and  advise  the  disallowance  of 
the  bill.  Under  the  peculiar  circumstances  that  probably 
existed,  the  veto  may  at  times  have  proved  advantageous  to  the 
public  interests ;  but  looking  at  the  nature  of  our  government, 
it  would  be  probably  wiser  to  be  content  with  the  check  which 
the  constitutional  act  already  imposes  on  improper  legislation 
in  a  provincial  legislature ;  that  is,  the  general  power  of  veto 
by  the  dominion  government.  It  may  be  added  that  this  is 
one  of  the  cases  in  which  a  superior  court  in  a  province  might 
well  be  authorized  to  express  an  opinion^  as  in  certain  American 
states,  on  the  constitutionality  of  a  measure  before  it  passes 


597] 


Federal  Government  in  Canada. 


141 


finally.     The  lieutenant-governor  would  then  be  placed  in  a 
les8  invidious  position.^ 

The  judiciary,  like  its  English  prototype,  evokes  respect  in 
every  province  of  Canada,  for  the  legal  attainments  and  high 
character  of  its  menil)ers.  Entirely  independent  of  popular 
caprice,  and  removable  only  for  cause  on  the  address  of  the 
two  houses  of  parliament,  it  occupies  a  very  advantageous 
position,  compared  with  the  same  body  in  many  of  the  United 
States.  While  the  administration  of  justice,  including  the 
constitution,  maintenance  and  organization  of  provincial  courts, 
both  of  civil  and  criminal  jurisdiction,  is  one  of  the  matters 
within  the  purview  of  the  le/^islatures,  the  government  of  the 
dominion  alone  appoints  and  provides  the  salaries  of  the  judges 
of  the  superior,  district  and  county  courts,  except  those  of  the 
probate  court  in  Nova  Scotia  and  New  Brunswick.''     It  has 

'See  Bourinot's  Parliamentary  Practice  of  Canada  (pp.  578,  581)  where 
thia  question  is  more  fully  discussed. 

'  B.  N.  A.  Act,  1867,  sec.  96.  The  governor-general  shall  appoint  the 
judges  of  the  superior,  district  and  county  courts  in  each  province,  except 
those  of  the  courts  of  probate  in  Nova  Scotia  and  New  Brunswick. 

97.  Until  the  laws  relative  to  property  and  civil  rights  in  Ontario,  Nova 
Scotia  and  New  Brunswick  and  the  procedure  of  the  courts  in  those  pro- 
vinces are  made  uniform,  the  judges  of  the  courts  of  those  provinces  ap- 
pointed by  the  governor-general  shall  be  selected  from  the  respective  bars 
of  those  provinces. 

98.  The  judges  of  the  courts  of  Quebec  shall  be  selected  from  the  bar  of 
that  province. 

99.  The  judges  of  the  superior  courts  shall  hold  officeduring  good  behavior, 
but  shall  be  removable  by  the  governor-general  on  address  of  the  senate 
and  house  of  commons. 

100.  The  salaries,  allowances  and  pensions  of  the  judges  of  the  superior, 
district  and  county  courts  (except  the  courts  of  probate  in  Nova  Scotia  and 
New  Brunswick)  and  of  the  admiralty  courts  in  cases  where  the  judges 
thereof  are  for  the  time  being  paid  by  salary,  shall  be  fixed  and  provided 
by  the  parliament  of  Canada. 

129.  Except  as  otherwise  provided  bv  this  act,  all  laws  in  force  in  Canada, 
Nova  Scotia  or  New  Brunswick  at  the  union,  and  all  the  courts  of  civil  and 
criminal  jurisdiction,  and  all  legal  commissions,  powers  and  authorities,  and 
all  officers,  judicial,  administrative,  and  ministerial,  existing  therein  at  the 
union,  shall  continue  in  Ontario,  Quebec,  Nova  Scotia  and  New  Brunswick, 


i 


m 


142 


Federal  Oovemmmt  in  Oatuida. 


[698 


been  also  decided  that  the  dominion  parliament  is  at  liberty 
to  create  new  courts,  when  public  necessity  may  require  it,  for 
the  better  administration  of  the  laws  of  Canada,  or  to  assign 
to  the  jurisdiction  of  existing  courts  any  further  matters 
appropriate  to  their  sphere  of  duty.  For  when  legislating 
within  its  proper  bounds,  that  parliament  is  clearly  competent 
to  require  existing  courts  in  the  respective  provinces,  and  the 
judges  of  the  same,  who  a^  appointed  and  paid  by  the  do- 
minion, and  removable  only  by  address  from  the  same  par- 
liament, to  enforce  their  legislation.  Such  an  "exercise  of 
authority  constitutes  no  invasion  of  the  rights  of  the  local 
legislatures."  ^ 

In  all  the  provinces  there  is  a  supreme  court,  or  court  of 
appeal ;  and  superior  courts,  known  under  the  legal  designa- 
tions of  high  courts  of  justice,  court  of  queen's  bench,  or 
superior  court.  Besides  these  tribunals  of  complete  civil  and 
criminal  jurisdiction,  there  are  various  other  courts  with  infe- 
rior or  special  functions,  known  as  county,  district,  surrogate 
or  probate,  maritime''  and  magistrates'  courts,  all  of  whose 


respectively,  as  if  the  union  had  not  been  made;  subject  nevertheless 
(except  with  respect  to  such  as  are  enacted  by  or  exist  under  acts  of  the 
parliament  of  Great  Britain  or  of  the  parliament  of  the  united  kingdom  of 
Great  Britain  and  Ireland)  to  be  repealed  and  abolished,  or  altered  by  the 
parliament  of  Canada,  or  by  the  legislature  of  the  respective  province, 
according  to  the  authority  of  the  parliament  or  of  that  legislature  under 
this  act. 

^  This  judgment  was  given  in  the  case  of  Valin  v.  Langlois,  in  which  the 
validity  of  the  dominion  act  imposing  upon  the  judges  the  trial  of  domin- 
ion controverted  elections  was  questioned.  See  Can.  Sup.  Court  Bep.,  Vol. 
Ill,  p.  70.    Also  5  App.  Cas.,  115. 

*  The  maritime  court  of  Ontario  is  a  dominion  court,  established  by  act 
of  parliament,  on  account  of  the  growing  importance  of  the  maritime  busi- 
ness on  the  lakes.  See  Can.  Bev.  Stat.,  c.  137 ;  Canada  Law  Times,  Vol. 
Ill,  pp.  1-13. 

Maritime  jurisdiction  over  the  high  seas  is  a  branch  of  international  law 
which  is  administered  throughout  the  British  col  es  by  the  imperial  vice- 
admiralty  oourta  established  therein.  See  Todd's  Pari.  Govt,  in  the  Colo- 
nies, p.  188. 


599] 


Federal  Ghvtmmfri  in  Canada, 


143 


duties  are  defined  by  statute.  So  far  as  our  ciroumstanoes 
have  permitted,  the  changes  in  the  organization  and  proce- 
dure of  the  English  courts  have  been  followed  in  the  English- 
speaking  provinces ;  and  this  is  especially  true  of  Ontario, 
where  the  judicature  act  is  modelled  upon  that  of  England, 
and  provides  for  a  supreme  court  of  judicature,  consisting  of 
two  permanent  divisions,  called  the  high  court  of  justice  for 
Ontario,  and  the  court  of  appeal  for  Ontario.  The  first  divi- 
sion is  again  divided  into  three  parts,  queen's  bench,  chancery 
and  common  pleas.  In  Ontario,  as  in  the  other  English  pro- 
vinces, the  recent  practice  of  England  has  been  followed,  and 
though  the  title  of  chancellor,  or  judge  in  equity,  still  exists  in 
some  courts,  there  is  a  fusion  of  law  and  equity ;  in  the  high  court 
of  justice  in  Ontario  and  in  the  supreme  court  in  Nova  Scotia, 
for  instance.  The  law  provides  every  legitimate  facility  for  ap- 
peals from  every  inferior  court  in  a  province,  and  causes  may  be 
taken  immediately  to  the  privy  council  of  England ;  or,  as  gen- 
erally happens,  to  the  supreme  court  of  Canada  at  Ottawa,  previ- 
ously to  going  before  the  court  of  the  last  resort  for  the  empire 
at  large.^  In  the  organization  and  procedure  of  the  courts  from 
the  earliest  times  since  Canada  became  a  possession  of  Eng- 
land, we  can  see  how  closely  Canadians  imitate  her  institutions 
in  all  respects.  The  names  of  the  courts  are  for  the  most  part 
identical.  The  justices  of  the  peace  who  are  still  appointed 
by  the  crown,  as  represented  by  the  lieutenant-governor  in  the 
provinces,  date  from  the  days  of  Edward  III.  As  in  Eng- 
land, there  is  no  limit  to  the  number  that  may  be  appointed  in 
a  district,  and  consequently  in  some  of  the  provinces  the  priv- 
ilege has  been  often  abused  by  different  governments,  in  order 
to  satisfy  the  petty  ambition  of  their  friends  and  supporters. 
The  courts  of  quarter  or  special  sessions,  which  were  held  by 
the  magistrates  for  the  trial  of  certain  causes,  but  especially 
for  the  imposition  and  expenditure  of  local  taxes  in  counties, 
long  existed  in  all  the  provinces ;  but  with  the  establishment 

*  See  aupm,  p.  66. 


1 

i 

1 

V 

i 

1 

V 

FM 

'1 

Ih 

■; 

''  il 

*'-l 

'1 

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1 

i 

144 


Federal  GovemmerU  in  Canada. 


[600 


of  municipal  institutions  and  the  organization  of  county  and 
other  courta,  they  have  practically  disappeared  from  the  legal 
Btruoture,  although  relics  of  their  powers  still  exist  in  the 
province  of  Quebec,  where  the  recorders  of  Quebec  and  Mon- 
treal are  judges  of  sessions,  and  in  the  general  sessions  of  the 
peace  in  Ontario. 

The  criminal  law  of  England  has  prevailed  in  all  the  pro- 
vinces since  it  was  formally  introduced  by  the  proclamation  of 
1764,  and  the  Quebec  act  of  1774.  The  French  Canadians 
never  objected  to  this  system  of  law,  since  in  many  respects  it 
was  more  humane  and  equitable  than  their  own  code.  The 
civil  law,  however,  has  continued  to  be  the  legal  system  in 
French  Canada  since  the  conquest,  and  has  obtained  a  hold 
now  in  that  section,  which  ensures  its  permanency  as  an  insti- 
tution closely  allied  with  the  dearest  rights  of  f.\e  people.  Its 
principles  and  maxims  have  been  carefully  collected  and  en- 
acted in  a  code  which  is  based  on  the  famous  code  of  Napo- 
leon. The  rules  of  procedure  relating  to  the  civil  law  have 
also  been  formulated  in  a  distinct  code.  The  civil  law  of 
French  Canada  had  its  origin  like  all  similar  systems,  in  the 
Roman  law,  on  which  were  engrafted,  in  the  course  of  cen- 
turies, those  customs  and  usages  which  were  adapted  to  the 
sooial  condition  of  France.  The  various  civil  divisions  of 
France  had  their  special  usages,  which  governed  each,  but 
all  of  them  rested  on  the  original  basis  of  the  Roman  law,  as 
compiled  and  codified  under  Justinian.  The  customary  law 
of  Paris  became  the  fundamental  law  of  Canada,  and  despite 
the  changes  that  it  has  necessarily  undergone  in  the  course  of 
time,  its  principles  can  still  be  traced  throughout  the  present 
system  as  it  has  been  codified  of  late  years.  The  French  civil 
law  has  been  materially  modified  since  1 763,  by  contact  with 
the  English  laws  and  customs,  and  by  the  necessities  and  cir- 
cumstances of  a  new  country ;  but  still,  despite  all  the  amend- 
ments and  modifications  it  has  undergone  in  order  to  make  it 
more  in  consonance  with  the  conditions  of  modern  life  and 
the  needs  of  commerce  and  enterprise,  it  displays  in  their 


601] 


Federal  Oovemment  in  Canada. 


146 


integrity  all  those  important  principles  which  have  the  sanc- 
tion of  ages  in  all  those  countries  where  a  similar  system  pre- 
vails, and  which  touch  the  civil  rights  of  individuals,  the 
transfer  of  projierty,  marriage  and  inheritance,  and  other  mat- 
ters of  vital  interest  to  all  persons  in  a  community. 

In  the  other  provinces  the  common  law  of  England  forms 
the  basis  of  their  jurisprudence.  Its  general  principles  were 
brought  into  this  country,  as  into  the  United  States,  by  the 
early  colonists  as  their  natural  heritage;  but  they  never 
adopted  those  parts  of  the  law  which  were  not  suited  to  the 
new  condition  of  things  in  America.  It  is  a  system  replete 
with  the  principles  of  individual  liberty  and  self-government 
and  giving  large  8coj>e  to  enterprise  and  energy  in  coloniza- 
tion. In  addition  to  the  Iwily  of  the  common  law,  Canada  has 
also  availed  itself  of  those  statutes  which  have  been  framed  in 
England  from  time  to  time,  in  consonance  with  the  condition 
of  things  to  which  the  old  maxims  of  the  law  could  not  apply. 
The  establishment  of  legislatures  in  the  provinces,  we  have 
seen,  was  only  a  little  later  than  the  entrance  of  the  large 
British  population,  and  it  was  therefore  in  their  power  to 
adapt  English  statutes  to  the  circumstances  of  this  country  at 
the  very  ccniiiiencement  of  our  history,  or  to  pass  such  enact- 
ments as  were  better  suited  to  the  circumstances  of  the  coun- 
try. Thus  it  happens  that  gradually  a  large  body  of  Cana- 
dian statutory  law  has  been  built  upon  the  common  law  base 
of  the  legal  structure,  and  with  a  view  of  making  the  law 
more  intelligible,  it  has  consequently  been  wisely  ordered,  at 
different  times  since  1854,  that  all  these  statutes  should  be 
revised  and  consolidated  by  commissions  composed  of  learned 
lawyers  and  judges.  The  people  of  the  dominion  and  of  all 
the  provinces  have  now  easy  access  to  the  statutory  law  that 
governs  them  within  the  respective  constitutional  limits  of  the 
parliament  and  the  legislatures.  It  is  also  found  convenient 
in  the  intervals  between  the  consolidations  of  the  statutory 
law  to  collect  together,  from  time  to  time,  all  the  enactments 
on  a  particular  subject  and  incorporate  them,  with  such  amend- 


i\ 


i;;i    .' 


1  f 


'il: 


146 


Federal  Government  in  Canada. 


[602 


ments  as  are  found  necessary,  in  one  statute.  This  has  been 
found  especially  useful  in  the  case  of  laws  affecting  railways, 
insurance  companies,  the  territorial  government,  and  other 
matters  of  large  public  import.  The  other  advantage  of  this 
practice  lies  in  the  fact  that  it  lessens  the  labor  of  a  greater 
consolidation  at  a  later  period.  The  criminal  law  has  been 
consolidated  in  this  way  and  forms  a  distinct  code. 

While  it  is  only  in  Quebec  that  there  is  a  system  of  muni- 
cipal or  civil  law  distinct  from  the  common  law,  there  are  at 
the  same  time  in  all  the  other  provinces  certain  differences  in 
the  statutory  law,  affecting  civil  rights  and  property,  that  have 
grown  up  from  the  commencement  of  their  history  as  separate 
political  entities,  until  the  present  time.  But  as  the  principles 
that  lie  at  the  basis  of  their  private  law  are  derived  from  the 
same  source  of  law  and  are  in  the  main  identical,  the  authors 
of  the  constitution  have  granted  a  gen  orsl  authority  to  the 
parliament  of  the  dominion  to  give  uniformity,  at  any  time,  to 
the  laws  relative  to  property  and  civil  rights  in  Ontario,  Nova 
Scotia  and  New  Brunswick ;  but  in  case  of  parliament  making 
such  provision,  it  shall  not  have  any  effect  until  it  is  formally 
ratified  by  the  l^islatures.*  No  effort  has  been  made  so  far  in 
this  direction,  and  it  is  now  hardly  probable  that  the  provinces 
would  be  willing  to  sanction  such  a  radical  change,  since  it 
would  give  parliament  thenceforth  unrestricted  powers  over 
property  and  civil  rights.  The  provinces  having  had  the 
enjoyment  of  their  jurisdiction  for  so  many  years  and  seen  how 


^B.  N.  A.  Act,  1867,  sec.  94.  Notwithstanding  anything  in  this  act,  the 
parliament  of  Canada  may  make  provision  for  the  uniformity  of  all  or  any 
of  the  laws  relative  to  property  and  civil  rights  in  Ontario,  Nova  Scotia 
and  New  Brunswick,  and  of  the  procedure  of  all  or  any  of  the  courts  in 
those  three  provinces,  and  from  and  after  the  passing  of  any  act  in  that 
behalf,  the  power  of  the  parliament  of  Canada  to  make  laws  in  relation  to 
any  matter  comprised  in  any  such  act  shall,  notwithstanding  anything  in 
this  act,  be  unrestricted,  but  any  act  of  the  parliament  of  Canada  making 
provision  for  such  uniformity  shall  not  have  effect  in  any  province  unless 
and  until  it  is  adopted  and  enacted  as  law  by  the  legislature  thereof. 


603] 


Federal  Government  in  Oanada. 


147 


closely  it  is  identified  with  provincial  rights,  and  interests, 
would  hardly  now  consent  to  place  themselves  in  a  position  of 
entire  subordination,  in  this  important  respect,  to  the  dominion 
government. 

The  position  of  the  judiciary  of  Canada  may  be  compared 
with  that  of  the  federal  judiciary  of  the  United  States,  since  the 
latter  has  a  permanency  and  a  reputation  not  enjoyed  by  the 
courts  of  all  the  states.  The  president  appoints,  with  the 
approval  of  the  senate,  not  only  the  judges  of  the  supreme 
court  at  Washington,  but  the  judges  of  the  circuit  and  district 
courts.  In  the  majority  of  the  states,  however,  the  judges  are 
elected  by  the  people,  and  in  only  four  cases  is  there  a  life 
tenure.  The  average  terra  of  a  judge's  official  life  in  that 
country  is  from  eight  to  ten  years ;  but  there  have  been  no 
instances  of  removal  during  that  term,  while  they  have  faith- 
fully discharged  their  functions.  As  in  Canada,  judges  may 
be  removed,  in  thirty  states,  upon  an  address  of  two-thirds  of 
each  branch  of  the  legislature.  Their  salaries  are  not  large : 
the  judges  of  the  supreme  court  of  the  United  States  receive 
$10,000  each  and  the  chief  justice  $500  in  addition ;  of  the 
circuit  courts,  $6,000 ;  of  the  district  courts,  from  $3,600  to 
$4,000;  of  the  supreme  courts  in  the  states,  from  $1,500  to 
$2,000 ;  the  average  being  from  $4,000  to  $5,000.^  All  writers 
who  have  studied  the  relative  positions  of  the  American  judi- 
ciary agree  that  the  influence  of  the  elective  system,  of  short 
tenure,  and  of  small  salaries  has  not  been  always  favorable  to 
the  standard  of  the  bench  in  the  several  states.  The  small 
salaries  especially  deter  lawyers  of  conspicuous  ability  and  large 
practice  from  accepting  such  positions.  The  supreme  and 
circuit  courts  of  the  Unit  ed  States,  hovvever,  occupy  a  vantage 
ground  from  their  permanency  and  the  nature  of  l;heir  functions, 
which  embrace  a  wider  sphere  of  study  and  interest.  On  the 
whole,  however,  with  all  the  disadvantages  under  which  the 
state  judiciary  labors,  it  is  generally  admitted  that  the  dignity 


I'li 


):t' 


■>; 


11 


I  • 


'  See  Spofford'B  American  Almanac,  1889. 


148 


Federal  Oovemment  in  Canada. 


[604 


of  the  office,  and  the  general  respect  for  the  law — an  inheritance 
from  their  British  ancestors — tend  to  act  as  a  counterpoise 
to  the  influences  of  which  I  have  already  been  speaking. 
In  Canada  the  salaries  are  even  less  than  in  the  United 
States,  and  there  are  also  inequalities  between  the  prov- 
inces, which  ought  to  be  removed,  and  salaries  generally 
increased.  The  judges  of  the  supreme  court  of  Canada  receive 
$7,000  each,  and  the  chief  justice  ^8,000;  the  chief  justices  in 
Ontario  and  Quebec  $6,000,  and  the  judges  of  the  superior  court 
from  $6,000  to  $3,500 ;  the  chief  justices  in  the  other  pro- 
vinces $5,000,  and  the  judges  $4,000,  except  in  Prince  Edward 
Island  where  the  amounts  are  $4,000  and  $3,200.  The  county 
and  district  judges  only  receive  from  $2,000  to  $2,400 — too 
small  a  sum  for  a  hard  worked  class — but  in  the  case  of  these 
and  other  judges  there  are  sufficient  sums  allowed  for  travelling 
expenses.  On  their  retirement  they  are  entitled  to  a  consider- 
able annuity  fixed  by  law.  Although  the  salaries  are  small 
compared  with  what  a  leading  lawyer  can  make  at  the  bar,  yet 
the  freedom  of  the  office  from  popular  caprice,  its  tenure  prac- 
tically for  life,  its  high  position  in  the  public  estimation,  all  tend 
to  bring  to  its  ranks  men  of  learning  and  character.  Since 
those  deplorable  times  in  Canadian  history  when  there  was  a 
departure  from  the  wise  principle  of  having  the  executive  and 
legislative  department  in  separate  hands,  the  bench  has  evoked 
respect  and  confidence ;  and  there  have  been  no  cases  of  the 
removal  of  a  judge  on  the  address  of  the  two  houses.  It  says 
much  for  the  different  governments  of  Canada,  and  especially 
for  the  present  premier^  who,  more  than  any  other  Canadian 
statesman,  has  had  the  responsibility  of  such  important  appoint- 
ments through  his  long  tenure  of  office,  that  they  have  never 
been  led  for  political  reasons  to  lower  the  standard  of  the 
bench  by  the  elevation  of  improper  persons.  Such  positions 
are  not  necessarily  given  as  a  reward  for  political  services ;  for 
in  numerous  instances  the  ablest  men  have  been  chosen  from 

» The  Right  Honorable  Sir  John  A.  Macdonald,  P.  C,  G.  C.  B. 


605] 


Federal  Government  in  Canada. 


149 


the  bar  without  reference  to  their  political  status.  The  legis- 
lative arena,  however,  necessarily  attracts  not  a  few  of  the  finest 
intellects  of  the  bar  in  all  the  provinces,  and  the  very  experi- 
ence they  there  gain  of  legislation  is  undoubtedly  favorable  to 
their  usefulness,  phould  they,  as  often  happens,  accept  the  dig- 
nified and  relatively  comfortable  (that  is  compared  with  active 
political  life)  position  of  a  seat  on  the  bencii  in  whose  merito- 
rious history  all  of  us  take  ^  very  proper  pride. 

I  must  now  direct  your  attention  briefly  to  the  important 
place  occupied  by  local  self-government  in  the  provincial 
structure.  In  the  days  of  the  French  regime,  as  I  have 
already  shown  you,  a  system  of  centralization  was  established 
by  Louis  Quatorze,  who  so  pitilessly  during  his  reign  enforced 
"that  dependence  which,"  as  Saint  Simon  tells  us,  "reduced 
all  to  subjection,"  everything  like  local  freedom  was  stifledj 
and  the  most  insignificant  matters  of  local  concern  were  kept 
under  the  direct  control  of  the  council  and  especially  of  the 
intendant  at  Quebec.  Until  1841  the  legislature  of  Quebec 
was  practically  a  municipal  council  for  the  whole  province, 
and  the  objection  of  the  hahUants  to  any  measure  of  local  tax- 
ation prevented  the  adoption  of  a  workable  municipal  system 
until  after  the  union  of  1841.  In  Upper  Canada,  however, 
the  legislature  was  gradually  relieved  of  many  works  and  mat- 
ters of  local  interest  by  the  adoption  of  measures  of  local  gov- 
ernment which  infused  a  spirit  of  energy  and  enterprise  in  the 
various  counties,  towns  and  cities.  The  union  of  1841  led  to 
the  introduction  of  municipal  institutions  in  both  the  pro- 
vinces, in  conformity  with  the  political  and  material  devehjp- 
ment  of  the  country.  By  1867  there  was  an  exceedingly  lib- 
eral system  in  operation  in  Upper  and  Lower  Canada,  but  the 
same  thing  cannot  be  said  of  the  maritime  provinces.  It  has 
been  only  within  a  few  years  that  tIXe  legislatures  of  Nova 
Scotia  and  New  Brunswick  have  organized  an  effective  muni- 
cipal system,  on  the  basis  of  that  so  successfully  adopted  for  a 
long  time  in  the  larger  provinces.  In  Prince  Edward  Island, 
however,  matters  remain  pretty  much  as  they  were  half  a  cen- 


il 


■•^il 


fi 


I  .ii\ 


150 


Federal  Government  in  Canada. 


[606 


tury  ago,  and  the  legislature  is  practically  a  municipal  council 
for  the  whole  island.  At  the  present  time  all  the  provinces, 
with  this  one  exception,  have  an  excellent  municipal  code, 
which  enables  every  defined  district,  large  or  small,  to  carry 
on  efficiently  all  those  public-  improvements  essential  to  the 
comfort,  convenience,  and  general  necessities  of  the  different 
communities  that  make  up  the  province  at  large.  Even  in  the 
territories  of  the  North-west,  ever^  proper  facility  is  given  to 
the  people  in  every  populous  district,  or  town,  to  organize  a 
system  equal  to  all  their  local  requirements.^ 

The  municipal  institutions  of  Canada  are  the  creation  of 
the  respective  legislatures  of  Canada,  and  may  be  amended  or 
even  abolished  under  the  powers  granted  to  that  body  by  the 
ninety-second  section  of  the  fundamental  law.  The  various 
statutes  in  force  establish  councils  composed  of  wardens,  reeves, 
mayors,  and  councillors  or  aldermen,  in  every  county,  town- 
ship or  parish,  town  and  city  in  the  provinces.  These  coun- 
cils are  representative  in  their  nature,  in  accordance  with  the 
principle  that  rests  at  the  basis  of  our  general  system  of  local 
government.  The  wardens  and  reeves  are  elected  as  a  rule 
by  the  council,  and  the  mayors  directly  by  the  rate  payers  in 
cities.  The  powers  and  authorities  of  the  various  municipali- 
ties are  regulated  by  general  statutes,  but  there  are  also  special 
acts  of  incorporation  in  the  case  of  many  cities  and  towns. 
These  various  municipal  organizations  have  the  power  of  im- 
posing direct  taxes  for  municipal  purposes,  including  public 
schools,  and  all  other  objects  that  fall  within  the  legitimate  scope 
of  their  local  requirements.  Taxation  is  limited  to  a  certain 
rate  on  the  dollar,  and  is  imposed  on  real  property,  as  well  as 
on  bonds,  stocks,  and  other  personal  property,  and  on  incomes 
in  the  province  of  Ontario.  All  the  municipalities  have  large 
borrowing  powers,  and  the  right  to  issue  debentures  to  meet 
debts  and  liabilities  incurred  for  necessary  improvements,  or 


*  See  Bourinot's  Local  Government  in  Canada,  in  Johns  Hopkins  Uni- 
versity Studies. 


607] 


Federal  Government  in  Canada. 


151 


to  assist  railways  of  local  advantage.  This  power  of  assisting 
railways  by  subsidies  has  been  largely  used,  though  chiefly  in 
Ontario ;  by  the  end  of  1884  the  municipalities  had  already 
paid  $12,472,000  to  secure  railway  communication.  The 
councils,  however,  cannot  directly  grant  this  aid,  but  must 
pass  by-laws  setting  forth  the  conditions  of  the  grant  and  the 
means  of  meeting  the  prospective  liabilities,  and  submit  them 
to  the  vote  of  the  rate-payers,  of  whom  a  majority  must  ap- 
prove the  proposition.  The  reference  to  the  people  at  the 
polls  of  such  by-laws  is  one  of  the  few  examples  which  our 
system  of  e:overnment  oflers  of  a  resemblance  to  the  referendum 
of  laws  passed  by  the  Swiss  federal  legislature  to  the  people 
for  acceptance  or  rejection  at  the  polls.  It  is  a  practice  pecu- 
liar to  municipal  bodies,  though  the  same  principle  is  illus- 
trated in  the  case  of  the  Canada  Temperance  Act,  which  was' 
passed  by  the  dominion  parliament,  and  can  only  come  into 
operation  with  the  consent  or  at  the  option  of  the  community 
to  which  it  is  referred,  in  accordance  with  the  provisions 
laid  down  in  the  statute.  Even  after  it  has  been  adopted  it 
may  also  be  repealed  by  submitting  another  by-law  to  the 
people  immediately  interested,  as  in  fact  we  have  seen  done  in 
so  many  cases  during  the  last  few  months,  on  account  of  the 
unpopularity  or  the  unsatisfactory  operation  of  the  law.  It 
is  an  interesting  question  how  far  it  is  competent  for  a  legis- 
lative body  entrusted  with  the  power  of  making  laws  to  refer 
the  adoption  or  rejection  of  a  general  law  like  that  of  the 
Temperance  Act  to  the  people  of  the  whole  province  or  of  a 
particular  district.  A  very  high  American  authority  has  well 
said  that  ''it  is  not  always  essential  that  a  legislative  act 
should  be  a  competent  statute  which  must  in  any  event  take 
effect  as  law  at  the  time  it  leaves  the  hand  of  the  legislative 
department.  A  statute  may  he  oondUional,  and  its  taking  effect 
may  be  made  to  depend  upon  some  subsequent  event."  The 
highest  courts  liave  declared  this  local  option  law  of  Canada 
as  within  the  competency  of  parliament  under  the  powers 
granted  it  by  the  constitution,  but  in  any  case  it  does  not 
appear  to   be  any  surrender  of  the  law-making  power  to 


i     4 


I    ,.,.i 


162 


Federal  Government  in  Canada. 


[608 


submit  simply  the  question  of  its  acceptance  to  the  voters  of  the 
locality  especially  interested  in  such  questions.  To  cite  again 
the  eminent  author  just  quoted :  "Affirmative  legislation  may  in 
some  cases  be  adopted,  of  which  the  parties  interested  are  at 
liberty  to  avail  themselves  or  not,  at  their  option.  A  private 
act  of  incorporation  cannot  be  forced  upon  the  corporation ; 
they  may  refuse  the  franchise  if  they  so  choose.  In  these  cases 
the  legislative,  act  is  regarded  as  complete  when  it  has  passed 
through  the  constitutional  formalities  necessary  to  perfect  leg- 
islation, notwithstanding  its  actually  going  in  operation  as  law 
may  depend  upon  its  subsequent  acceptance." 

The  necessity  of  submitting  by-laws  to  the  people  in  a  mu- 
nicipality, however,  rests  on  the  constitutional  authority  of 
the  legislature  which,  in  the  general  law  passed  for  the  regu- 
lation of  municipalities,  has  thought  proper  to  provide  such 
means  of  reference  to  the  rate-payers  of  a  locality.  On  gen- 
eral principles,  indeed,  the  powers  of  legislation  bestowed  in 
this  way  on  municipal  corporations  cannot  be  considered  "  as 
trenching  upon  the  maxim  that  legislative  power  must  not  be 
delegated,  since  that  maxim  is  to  be  understood  in  the  light  of 
the  immemorial  practice  of  this  country  and  England,  which 
has  always  recognized  the  propriety  and  policy  of  vesting  in 
the  municipal  organizations  certain  powers  of  local  regulation, 
in  respect  to  which  the  parties  immediately  interested  may 
fairly  be  supposed  more  competent  to  judge  of  their  needs 
than  any  central  authority.  As  municipal  organizations  are 
mere  auxiliaries  of  the  state  or  provincial  government  in  the 
important  business  of  municipal  rule,  the  legislature  may 
create  them  at  will  from  its  own  views  of  propriety  or  necessity 
and  without  consulting  the  parties  interested ;  and  it  also  pos- 
sesses the  like  power  to  abolish  them,  without  stopping  to  inquire 
what  may  be  the  desire  of  the  corporation  on  that  subject.' 


»i 


^AU  these  citations  are  from  Cooler's  Constitutional   Limitations  (pp. 
139-148)  where  the  whole  subject  is  fully  discussed.    His  remarks  apply 


to  Canada  as  well  as  to  the  United  States. 


609] 


Federal  Government  in  Canada. 


153 


Of  the  right  of  the  provincial  legislatures  to  delegate 
powers  specially  given  them  by  the  constitution  to  any  body 
or  authority  also  created  by  themselves,  we  have  a  decision 
of  the  privy  council  in  the  case  of  the  liquor  license  act  of 
Ontario  (the  most  important  yet  given  by  that  tribunal  on  the 
constitutional  jurisdiction  of  the  provinces),  which  authorized 
certain  license  commissioners  to  pass  resolutions  regulating 
and  determining  within  a  municipality  the  sale  of  liquors.^ 
The  maxim  delegatus  non  potest  delegare  was  distinctly  relied 
upon  by  the  opponents  of  the  measure,  but  the  judicial  com- 
mittee emphatically  laid  down  that  such  an  objection  is 
founded  on  an  entire  misconception  of  the  true  character  and 
position  of  the  provincial  legislatures.  Within  the  limits  of 
its  constitutional  powers  "the  local  legislature  is  supreme  and 
has  the  same  authority  as  the  imperial  parliament,  or  the  par- 
liament of  the  dominion,  would  have  had  under  like  circum- 
stances to  confide  to  a  municipal  institution  or  body  of  its  own 
creation  authority  to  make  by-laws  or  resolutions  as  to  the 
subjects  specified  in  the  enactment,  and  with  the  object  of 
carrying  the  enactment  into  operation  and  effect."  Such  an 
authority  is,  in  their  opinion,  "ancillary  to  legislation, and  with- 
out it  an  attempt  to  provide  for  varying  details  and  machinery 
to  carry  them  out  might  become  oppressive  or  absolutely  fail." 
A  legislature  in  committing  important  regulations  to  agents 
or  delegates,  it  is  decisively  stated,  does  not  by  any  means 
efface  itself ;  for  "  it  retains  its  powers  intact  and  can,  when- 
ever it  pleases,  destroy  the  agency  it  has  created  and  set  up 
another,  or  take  the  matter  directly  into  its  own  hands."  And 
how  far  it  "  shall  seek  the  aid  of  subordinate  agencies,  and 
how  long  it  shall  continue  them,  are  matters  for  each  legisla- 
ture, and  not  for  courts  of  law,  to  decide."  ^ 


*  See  supra,  p.  54. 

'  See  9  App.  Cas.,  117 ;  or  Legal  News,  Vol.  VII,  p.  23.  The  learned  judg- 
ment of  the  Ontario  court  of  appeal  in  this  famous  case  contains  abundance 
11 


m    il 

1    \ 

ilji 

EHH  '* 

111  -i^ 

rj       f 

■'•  1 

f  \ 

I 


164 


Fedei'ol  Oovemment  in  Canada, 


[610 


The  power  of  passing  by-laws  and  imposing  taxation  accord- 
ingly gives  to  the  various  municipal  councils  of  the  provinces 
a  decided  legislative  character.  The  subjects  embraced  within 
tlieir  jurisdiction  are  set  forth  with  more  or  less  distinctness 
in  the  municipal  acts  of  the  provinces,  especially  of  Ontario. 
The  council  of  every  township,  city,  town  or  incorporated  vil- 
lage may  pass  by-laws  for  the  construction  and  maintenance 
of  waterworks,  the  amounts  required  to  be  collected  under 
local  improvement  by-laws,  licensing  and  regulating  transient 
traders,  the  purchase  of  real  property  for  the  erection  of  public 
school  houses  thereon,  cemeteries,  their  improvement  and  pro- 
tection, cruelty  to  animals,  fences,  exhibitions  and  places  of 
amusement,  planting  and  preservation  of  trees,  gas  and  water 
companies,  public  morals,  giving  intoxicating  liquor  to  minors, 
nuisances,  sewerage  and  drainage,  inspection  of  meat  and  milk, 
contagious  diseases,  fevers,  prevention  of  accidents  by  fire, 
aiding  schools,  endowing  fellowships,  markets,  police,  indus- 
trial farms,  charities  and  numerous  other  subjects  immediately 
connected  with  the  security  and  comfort  of  the  people  in  every 
community.^  The  most  important  duty  of  every  municipality, 
especially  in  the  cities,  is  the  imposition  and  collection  of 
taxes.  The  burden  of  taxation  is  on  real  property,  and  the 
difficulty  is  felt  in  the  same  measure  in  Canada  as  in  the 
United  States  of  obtaining  accurate  returns  for  taxation  pur- 
poses, of  all  intangible  property  in  the  shape  of  bonds,  mort- 
gages, and  other  securities  held  by  individuals.  The  same 
may  be  said  of  returns  of  incomes,  except  in  the  case  of 
public  officials  and  clerks,  of  whose  salaries  it  is  easy  to 
obtain  information.'    The  statistics  of  this  kind  of  property, 


of  precedents  for  legislation  entrusting  a  limited  discretionary  authority  to 
others,  and  gives  many  illustrations  of  its  necessity  and  convenience. 

'  See  Bev.  Stat,  of  Ontario,  1887,  chap.  184,  for  examples  of  the  large 
powers  entrusted  to  municipalities  in  probably  the  best  constructed  muni- 
cipal system  in  the  world. 

'The  oflScial  incomes  of  the  o£Bcers  of  the  dominion  government  cannot 
be  taxed  by  the  provinces  or  the  municipalities  thereof.  Leprohon  v.  City 
of  Ottawa,  2  App.  Bep.  Ont.,  p.  622. 


611] 


Federal  Oovei'nment  in  Canada. 


155 


as  given  in  assessment  rolls,  are  very  unreliable.  For 
instance,  we  find  that  while  the  assessed  value  of  real  prop- 
erty in  Ontario  increased  from  ^325,484,116  in  1873  to 
$583,231,133  in  1883,  the  assessed  value  of  the  personal 
property  only  increased  during  the  same  period  of  prosperity 
from  $49,010,772  to  $56,471,661 ;  and  it  must  be  remembered 
that  the  assessors,  especially  in  rural  districts,  generally  place 
the  value  of  real  property  at  a  low  rate.  The  exemptions 
from  taxation  comprise  all  government  and  public  property, 
places  of  worship  and  lands  connected  therewith,  and  a 
great  number  of  buildings  occupied  by  scientific,  educational, 
and  charitable  institutions.  In  the  province  of  Quebec,  where 
the  Church  of  Rome  has  accumulated  a  vast  amount  of  valu- 
able property,  especially  in  and  near  Quebec  and  on  the  island 
of  Montreal,  the  value  of  exemptions  is  estimated  at  many 
millions  of  dollars.  In  Ontario  an  agitation  has  commenced 
against  the  continuance  of  a  law  which  restricts  the  assessment 
in  certain  localities  to  relatively  narrow  limits,  but  the  religious 
and  other  interests  that  would  be  eflFected  are  likely  to  prevent 
any  change  for  a  long  time  to  come.  In  Quebec  it  is  quite 
impracticable. 

The  municipal  system  on  the  whole  is  creditable  to  the 
people  of  Canada.  It  has  its  weaknesses,  owing  in  some 
measure  to  the  disinclination  of  leading  citizens,  especially  in 
the  cities  and  large  towns,  to  give  much  of  their  time  to  mu- 
nicipal duties,  although  every  person  is  so  deeply  interested  in 
their  efficient  and  honest  performance.  Jobbery  and  corrup- 
tion are,  however,  not  conspicuous  characteristics  of  municipal 
organizations  in  the  provinces;  and  we  have  no  examples 
happily  in  our  history  at  all  inviting  comparison  with  the 
utter  baseness  of  the  Tweed  ring  in  New  York.  In  the  rural 
municipalities  of  Ontario  there  is  a  greater  readiness  than  in 
the  large  cities  to  serve  in  the  municipal  councils,  and  as  I 
have  already  shown,  those  bodies  have  given  not  a  few  able 
and  practical  men  to  parliament.  On  an  effective  system  of 
local  self-government  rests  in  a  very  considerable  degree  the  , 


,, 


!        .1 
3  I 


15C 


Federal  Government  in  Canada. 


[612 


satisfactory  working  of  our  whole  provincial  organization.  It 
brings  men  into  active  connection  with  the  practical  side  of 
the  life  of  a  community  and  educates  thera  ibr  a  larger  though 
not  more  useful  sphere  of  public  life/ 

The  Territories  of  Canada,  to  whose  organization  I  must 
now  refer,  comprise  a  vast  region  stretching  from  the  province 
of  Manitoba  to  the  Rocky  Mountains,  an<l  from  the  frontier 
of  the  United  States  to  the  waters  of  the  North.  It  embraces 
more  than  two-thirds  of  the  dominion,  probably  2,600,000 
square  miles,  and  is  watered  by  the  Red,  Saskatchewan,  Assi- 
.niboine.  Peace,  Mackenzie  and  other  rivers  of  large  size  and 
navigable  for  the  most  part  by  steamers  of  low  draft.  This 
region  came  into  the  possession  of  Canada  by  a  purchase  of 
the  rights  of  the  Hudson's  Bay  Company,^  who  had  so  long 
enjoyed  a  monopoly  of  the  fur  trade,  and  used  their  best  eiforts 
to  keep  it  a  terra  incognita.  The  government  of  the  dominion 
now  holds  complete  jurisdiction  over  the  territory,  out  of 
whose  fertile  lands  must,  sooner  or  later,  be  developed  ten  or 
twelve  provinces  as  rich  and  prosperous  as  any  of  the  great 
north-western  states.  The  provisional  district  of  Keewatin 
was  formed  some  years  ago  out  of  the  eastern  portion  until 
the  settlement  of  the  boundary  dispute  between  Ontario  and 
the  Dominion  ;  but  since  that  question  was  settled  it  has  only 
a  nominal  existence,  though  it  still  remains  under  the  super- 
vision of  the  lieutenant-governor  of  the  province  of  Manitoba. 
In  1882  a  large  portion  of  the  north-west  region  was  divided 


* "  I  have  dwelt/'  sajs  John  Stuart  Mill,  in  Representative  GoTernment, 
ch.  XV,  "  in  strong  language  on  the  importance  of  that  portion  of  the  ope- 
ration of  free  institutions  which  may  be  called  the  public  education  of  the 
citizens.  Now  of  this  education  the  local  administrative  institutions  are 
the  chief  instruments." 

'  B.  N.  A.  Act,  1867,  sec.  146,  provides  for  admission  of  Territories.  See 
also  Imp.  Stat.,  31  and  32  Vict.,  c.  105,  (Can.  Stat,  for  1869) ;  Can.  Com- 
mons Jour.,  1869,  pp.  149, 156 ;  Can.  Stat.,  32  and  33  Vict.,  c.  3 ;  Imp.  Stat., 
34  and  35  Vict.,  c.  28. 


613] 


Federal  Ooveiinment  in  Canada. 


157 


into  four  districts  for  postal  and  other  purposes.^  Assiniboia, 
now  the  most  populous  district,  contains  about  95,000 
square  miles;  Saskatchewan,  114,000;  Alberta,  100,000; 
and  Athabasca,  122,000.  Beyond  these  districts  lies  an  im- 
mense and  relatively  unknown  region,  watered  by  the  Peace, 
Slave  and  Mackenzie  rivers,  and  believed  to  be  capable  of 
raising  cereals  and  supporting  a  large  population.  The  total 
number  of  settlers,  who  have  mostly  come  into  the  country 
within  six  years,  does  not  exceed  fqrty  thousand  souls, 
scattered  over  a  wide  region ;  but  villages  and  towns  are 
springing  up  with  great  rapidity  throughout  the  west,  and 
immigmtion  is  flowing  over  the  rich  wheat-producing  jirai- 
ries  of  the  district  of  Assiniboia.  The  authorities  at  Ottawa 
control  the  government  of  the  territories.  Until  the  win- 
ter of  1888,  they  were  governed  by  a  lieutenant-governor 
and  council,  partly  nominated  by  the  governor-general  in 
council  and  partly  elected  by  the  people.  In  the  session  of 
1888,  the  parliament  of  Canada  passed  an  act  granting  the 
territories  a  legislative  assembly  of  twenty-two  members,  but 
they  do  not  enjoy  responsible  government  like  the  provinces. 
The  lieuteuant-goverior,  who  is  appointed  by  the  governor  in 
council,  for  four  yeard,  has,  however,  the  right  of  choosing 
from  the  assembly  four  members  to  act  as  an  advisory  council 
in  matters  of  finance.  Three  of  the  judges  of  the  territories 
sit  in  the  assembly  as  legal  experts,  to  give  their  opinion  on 
legal  and  constitutional  questions  as  they  arise ;  but  while  they 
may  take  part  in  the  debates  they  cannot  vote.    The  assembly 


I 


*  B.  N.  A.  Act  of  1871  (amending  that  of  1867  in  order  to  remove  certain 
doubts  as  to  tlie  powers  of  Canadian  parliament)  enacts: 

2.  The  parliament  of  Canada  may  from  time  to  time  establish  new  pro- 
vinces in  any  territories  forming  for  the  time  being  part  of  the  Dominion  of 
Canada,  but  not  included  in  any  province  thert-of,  and  may  at  the  time  of 
such  establishment  make  provision  for  the  constitution  and  administration 
of  any  such  province  and  for  the  passing  of  laws  for  the  peace,  order  and 
good  government  of  such  province,  and  fur  its  representation  in  the  said 
parliament. 


168 


Federal  Oovemment  in  Canada. 


[614 


has  a  duration  of  three  years  and  is  called  together  at  such  time 
f|s  the  licutenant-^;overnor  appoints.  It  elects  its  own  speaker 
and  is  governed  by  rules  and  usnges  similar  to  those  that  pre- 
vail in  the  assemblies  of  the  provinces.  Each  member  receives 
$500,  the  legal  experts  $250,  a  session,  besides  an  allowance  for 
travelling  expenses.  The  parliament  of  Canada  provides  nearly 
all  the  funds  necessary  for  carrying  on  the  government  jnd  meet- 
ing necessary  expenses  for  local  purposes.  The  elections  are  by 
open  voting;  the  elcctois  must  be  bond  fide  male  residents  and 
householders  of  adult  ago,  who  are  not  aliens  or  unenfran- 
chised Indians,  and  who  have  resided  within  the  district  for 
twelve  months  before  the  election.  The  civil  and  criminal 
laws  of  England  are  in  force  in  the  terrritories,  so  far  as  they 
can  be  made  applicable;  and  the  lieutenant-governor  and 
assembly  have  such  powers  to  make  ordinances  for  the  gov- 
ernment of  the  North-west  as  the  governor-general  in  council 
confers  upon  them;  but  their  powers  cannot  at  any  time 
exceed  those  conferred  by  the  constitutional  act  upon  the  pro- 
vincial legislatures.  There  is  a  supreme  court,  composed  of 
five  judges,  appointed  by  the  Ottawa  government,  and  remov- 
able upon  the  address  of  the  senate  and  house  of  commons. 
The  court  has,  witliin  the  territories,  and  for  the  administration 
of  the  law,  all  such  powers  as  are  incident  to  a  superior  court 
of  civil  and  criminal  jurisdiction.^  The  territories  are  rep- 
resented in  the  senate  by  two  senators  and  in  the  house  of 
commons  by  four  members,  who  vote  and  have  all  the  other 
privileges  of  the  representatives  of  the  provinces.  In  this 
respect  the  territories  of  Canada  enjoy  advantages  over  those 
of  the  United  States  territories,  which  are  not  represented  in 
the  senate,  but  have  only  delegates  in  the  house  of  representa- 
tives without  the  right  of  voting.  Year  by  year,  as  the  popula- 
tion increases,  the  people  must  have  their  political  franchises 
enlarged.  The  time  has  come  for  introducing  the  ballot,  and 
the  inhabitants  are  an  exceedingly  intelligent  class,  drawn  for 


» Can.  Rev.  Stat.,  chs.  7,  50 ;  Can.  Stat.,  1887,  cli.  3;  1888,  ch.  19. 


615] 


Federal  Oovemment  in  Canada. 


169 


the  niost  part,  so  far,  from  Ontario  and  the  other  English 
provinces,  and  are  in  every  way  deservinc:  of  goveminj? 
themselves  in  all  local  matters,  with  as  little  interference  as 
possible  from  the  central  authority. 

There  are  in  the  territories  some  30,000  Indians,  chiefly 
Assinihoines,  Cre(38,  Bloods,  and  Blackfeet,  in  various  stages  of 
development.  They  arc  the  wards  of  the  Canadian  government, 
which  has  always  exercised  a  paternal  care  over  them.  They 
are  fed  and  clothed  in  larp'e  numbers.  Before  lands  were  laid 
out  for  settlement,  the  Indian  titles  were  cxtinguishe<l  by  trea- 
ties of  purchase,  conducted  between  the  representatives  of  the 
dominion  and  the  councils  of  the  several  tribes.  The  Indians 
live  on  reserves  set  apart  for  them  in  valuable  districta;  schools 
and  farm  instruction  are  provided  by  the  government,  with 
the  creditable  hope  of  making  them  more  useful  meral^ers  of 
the  community.  Agents  live  on  the  reserves,  and  inspectors 
visit  the  agancies  from  time  to  time  to  see  that  the  interests  of 
the  Indians  are  protected  in  accordance  with  the  general  policy 
of  the  government.  The  sale  of  spirituous  liquors  is  expressly 
forbidden  in  the  territories,  chiefly  with  the  view  of  saving  the 
Indians  from  their  baneful  influences.*  The  liberal  policy  of 
the  government  with  respect  to  the  Indians  is  deserving  of 
the  encomiums  which  it  has  received  from  all  those  who  have 
studied  its  operation.  So  far  as  I  can  judge  from  careful  in- 
quiry, the  effects  of  the  policy  are  on  the  whole  excellent,  and 
Indians  generally  are  every  way  gaining  greater  confidence  in 
the  government  of  the  country.  Of  course  it  is  difficult,  if  not 
impossible,  in  the  great  majority  of  cases,  to  make  a  decided 
radical  change  in  the  habits  of  the  older  Indians,  and  educate 
them  to  become  competitors  of  the  white  man  in  industrial 
pursuits ;  but  it  is  gratifying  to  find  that  so  large  a  number 
are  already  tilling  the  soil  with  a  moderate  and,  for  them,  an 
encouraging  measure  of  success.  The  schools  established  by 
the  government  are  well  patronized,  and  on  all  sides,  in  short, 

'  See  Can.  Bev.  Stat.,  c.  43,  regulating  all  matters  respecting  the  Indians. 


i 


I 


;ji 


160 


Federal  Govetmment  in  Canada. 


[616 


I  see  much  hope  for  the  future  generations  of  the  Indian  race 
in  the  territories  of  Canada.  At  all  events,  good  must  con- 
tinue to  arise  from  the  operation  of  the  established  policy,  and 
Canadians  will  always  feel  that  they  have  done  their  duty 
towards  a  race  which  has  nev^r  in  the  past  been  treated  with 
similar  generosity  and  kindness  in  the  territories  of  the  United 
States. 

A  federal  government  controlling  all  matters  essential  to 
the  general  development,  the  permanency,  and  the  unity  of 
the  whole  dominion,  and  several  provincial  governments  hav- 
ing complete  jurisdiction  overall  subjects  intimately  connected 
with  the  comfort  and  convenience,  the  life  and  property,  the 
happiness  and  prosperity  of 'the  various  communities  of  people 
that  dwell  within  the  limits  of  these  local  organizations ;  these 
are  the  dominant  features  of  the  federal  structure.  Elements 
of  weakness  may  exist  in  the  financial  basis  on  which  the  struc- 
ture rests,  and  in  the  veto  power  given  to  the  central  authority 
over  the  acts  of  the  provincial  governments.  The  upper  houses 
of  the  legislatures  have  none  of  the  strength  and  influemje  of 
the  senates  of  the  United  States,  and  can  exercise,  under  their 
present  constitution,  relatively  little  of  that  control  over  the 
legislation  of  a  popular  house  which  may  be  found  useful  at 
critical  times.  Apart  from  what  are  considered  constitutional 
defects  and  sources  of  conflict  between  the  central  and  provin- 
cial authorities,  there  are  other  conditions  of  their  political 
system  which  may  awake  serious  apprehensions  in  the  minds 
of  thoughtful  publicists  and  statesmen.  An  eminent  English 
thinker.  Professor  Seeley,  has  said  that  "  there  are  in  general 
three  forces  by  which  states  are  held  together,  community  of 
race,  community  of  religion,  and  community  of  interest.  ^ 
When  we  come  to  make  an  application  of  this  doctrine  to 
Canada,  we  see  that  there  is  one  large  province  under  the 
direct,  practically  unrestricted,  control  of  a  large  and  rapidly 
increasing  population,  speaking  a  language,  professing  a  reli- 


'  Expansion  of  England,  p.  50. 


TT 


617] 


Fedei^al  GovemmeiU  in  Canada. 


161 


gion,  and  retaining  certain  institutions,  different  from  those 
of  the  majority  of  the  people  of  the  dominion.  I  have  ah-eady 
shown  the  remarkable  influence  this  French  race  has  naturally 
exercisci  over  the  conditions  of  our  political  existence,  and  in 
the  formation  of  our  constitutional  system.  From  time  to 
time  in  our  history  such  antagonisms  as  must  always  arise 
when  there  are  racial  and  religious  differences  in  a  commu- 
nity, have  shown  themselves  with  more  or  less  intensity.  As 
I  have  already  shown  in  the  first  lecture,  this  antagonism  led 
to  unhappy  results  in  our  early  annals,  and  left  a  sad  blot  on 
our  political  history.  In  these  later  times,  with  the  develop- 
ment of  civil  liberty  and  with  a  wiser  understanding  of  the 
principles  that  should  govern  communities,  living  under  the 
same  system  of  government,  the  instances  have  been  few  and 
relatively  unimportant,  when  a  conflict  of  opinion  has  arise.* 
between  the  two  races  that  inhabit  Canada.  Our  political 
history  for  half  a  century  has  been  eminently  creditablf.  to  the 
good  temper,  patience  and  moderation  of  the  leading  men  in 
French  as  well  as  in  English  Canada.  At  critical  moments 
conciliatory  counsels  have  invariably  prevailed  in  the  end 
over  the  dictates  of  unreason  and  passion.  All  people  and 
communities  within  the  dominion  have  already  learned  that 
in  the  parliament  they  can  always  find  every  consideration 
and  justice  given  to  their  fair  and  legitimate  claims.  No 
one  can  foresee  the  time  when  an  amalgamation  of  the  two 
races  will  be  possible,  when  the  language  and  institutions 
of  French  Canada  will  disappear.  It  may  be  there  are  those 
in  English  Canada  who  regret  that  there  are  no  signs  as  yet 
of  such  an  efiacement.  It  seems  inevitable  that  the  great 
energy  and  colonizing  capacity  of  English  speaking  peoples 
will  obtain  the  supremacy,  and  open  up  and  control  the  pro- 
vinces that  must  soon  be  carved  out  of  the  great  territories  of 
the  North-west ;  and  the  French  Canadian  race  will  find  itself 
in  a  far  smaller  minority  than  at  present.  But  there  is  no 
reason  to  suppose  that  it  will  ever  cease  to  be  an  important 
influence  in  the  confederation,  which  the  Canadians,  irrespec- 


162 


Fedei'al  Government  in  Canada. 


[618 


tive  of  race  and  religion,  are  establishing  in  a  continuous  line 
of  provinces  from  the  Atlantic  to  the  Pacific  shores.  Though 
there  are  differences  in  language  and  certain  institutions  be- 
tween the  French  and  English  Canadian  peoples,  yet  there  is 
an  equal  community  of  interest  between  both.  Our  history 
for  more  than  a  century  gives  us  very  clear  illustrations  of  the 
thorough  appreciation  that  both  races  have  of  this  identity  of 
interest.  They  have  labored  with  equal  patriotism  to  build 
up  the  confederation  and  develop  its  resources.  The  result 
of  this  union  of  races  in  the  work  of  strengthening  and  pro- 
moting the  welfare  of  the  dominion  has  so  far  been  eminently 
encouraging.  A  large  intercolonial  trade  has  been  developed, 
railways  have  spanned  the  continent,  and  public  works  of 
equally  national  importance  have  been  completed,  and  numer- 
ous other  measures  passed,  all  in  the  direction  of  consolidating 
the  union.  The  foundations  of  a  new  nationality  have  been 
already  laid  by  the  common  efforts  of  the  two  races,  united  as 
they  are  by  the  strong  ties  of  a  common  interest ;  and  as  long 
as  they  continue  to  pursue  the  same  wise  policy  of  mutual 
compromise  and  mutual  forl)earance  on  all  occasions  of  differ- 
ence, it  is  impossible  to  exaggerate  the  possibilities  that  seem 
open  to  a  dominion  in  the  possession  of  institutions  so  fully 
Avorthy  of  the  respect  and  confidence  of  its  people. 


TT'* 


INDEX  TO  SEVENTH  VOLUME 

OF 

Johns  Hopkins  University  Studies 

IK 

HISTORICAL  AND  POLITICAL  SCIENCE. 


Adams,  Dr.  H.B.,  195;  quoted,  199, 
206,  212,  230,  vii-ix,  41,  110. 

Adams,  Judge  8.  W.,  vii-ix,  4,  5. 

Agawam,  visited  by  men  from  New- 
town, vii-ix,  12. 

Albemarle  Academy,  202. 

Alcalde,  82, 83.  85,  93, 101 ;  functions 
of,  80,  96,  97,  98,  101;  office  of, 
abolished  in  San  Francisco,  111; 
restored,  115;  abolished  by  charter 
of  1850,  132;  in  Louisiana,  164. 

Andrews,  Judge,  quoted,  vii-ix,  121. 

Andrews,  Charles  M.,  on  the  river 
towns  of  Connecticut,  vii-ix. 

Assembly,  legislative,  of  San  Fran- 
cisco, 107  ffi 

Atkinson,  250. 

Atwater,  E.  E.,  quoted,  vii-ix,  55. 

Auxiliary  Sanitary  Association,  in 
New  Orleans,  185. 

Ayuntamiento,  84,  85,  87,  88,  89,  90, 
91,100;  functions  of,  86;  abolished 
in  San  Francisco,  108;  restored, 
116;  abolished  by  charter  of  1850, 
132. 

B 

Bacon,  Sir  Francis,  quoted,  24. 
Bancroft,  George,  message  of,  to  Oom- 

modore  Sloat,  quoted,  93. 
Barbour,  James,  241. 


Barbour,  P.  P.,  241 ;  offered  law  pro-, 
fessorship,  311. 

Biirlow,  Peter,  287,  295,  299. 

Barnett,  Eev.  S.  A.,  24 ;  and  the  Uni- 
versity Colony  in  East  London,  58, 
59,  60. 

Bartlett,  Lieut.  W.  A.,  95,  99. 

Berkeley,  BUhoj^,  302. 

Berlin,  Connecticut,  vii-ix,  75,  76. 

Bienville,  founds  New  Orleans,  160. 

Biloxi,  settled,  159. 

Birkbeck,  Dr.  George,  assists  Gilmer, 
285,  292,  300;  and  the  University 
of  London,  298. 

Blaettermann,  Dr.  George,  292,  31 3 ; 
engaged  as  professor  in  University 
of  Virginia,  244,  245,  246,  306. 

Blake,  vr  mted,  vii-ix,  107. 

Blake,  Mm.  Edward,  quoted,  497, 504, 
509,  537,  680,  581. 

Blok,  Adrian,  explores  Connecticut, 
vii-ix,  10. 

Bloomiield,  vii-ix,  75,  76. 

Bond,  (quoted,  vii-ix,  43. 

Bondeher,  quoted,  96. 

Bonnycastle,  Charles,  287 ;  made  pro- 
fessor in  University  of  Virginia, 
299;  arrives,  311;  transferred  to 
Key's  chair,  313. 

Boston  Courier,  quoted,  307. 

Bourinot,  Dr.  John  G.,  on  federal 
government  in  Canada,  467-618 ; 
quoted,  485, 504, 511,  514, 523, 585, 
597,  606. 

163 


! 


^ 


164 


Index. 


[620 


Bowditch,  Nathaniel,  212. 
liozman,  J.  L.,  quoted,  vii-ix,  41. 
Bradford,  William,  vii-ix,  7 ;  letter  of, 

to  Miniiit,  quoted,  7,  lo. 
Breckinridge,  Mra.  E.,  196. 
Breckinridge,  James,  209. 
British  Columbia,  union  with,  582'. 

(See  Canada.) 
British   North  America  Act,  1867. 

(See  Canada.) 
Brock,  K.  A.,  217. 
Brockeiiboroiigh,  Wm.,  241, 
Bronson,  Dr.  Henry,  quoted,  vii-ix, 

79,  84,  86. 
Brougham,  Henry,  244, 245, 292, 293; 

letter  of,  quoted,  247  ;  and  the  Uni- 
versity of  London,  298. 
Brown,  Hon.  George,  quoted,  529, 553. 
Bryce,  James,  quoted,  517,  521,  523, 

548,  560,  568. 
Bucareli,  San  Francisco  founded  at 

command  of,  75. 
Buchanan,  George,  269,  270. 
Burke,  quoted,  24. 
Burnett,  P.  H.,  126,  130;  and   the 

San  Francisco  town  lots,  126,  129. 
Burwell,  Wra.  A.,  220. 
Butler,  Chief  Justice,  quoted,  vii-ix, 

121,  122. 
Butler,  Dr.  Samuel,  281. 


Cabell,  Joseph  C,  203,_  309;  and 
the  University  of  Virginia,  203  ff. ; 
quoted,  213,  237;  negotiates  with 
Tucker,  307 ;  suggestions  of,  as  to 
law  professorship,  311. 

Cabell,  Col.  Nicholas,  203. 

Cabildo,  established  in  Louisiana, 
164. 

California,  local  government  of,  un- 
der old  regime,  80  ff. ;  constitu- 
tional convention  of  1849,  125. 
(See  also  San  Francisco.) 

California  Stat',  quoted,  97,  99,  100. 

Campbell,  Thomas,  303;  letter  of, 
quoted,  297 ;  and  the  University 
of  London,  298. 

Campbell,  Thomas  Telford,  297,  298. 

Canada,  federal  government  in,  J. 
G.  Bourinot  on,  457-618 ;  French 
period,  464-469;  transition  period, 
469-473;    proclamation  of   1763, 


470;  Quebec  act,  471;  effect  ot 
coming  of  loyalists,  472;  third 
period,  473-478;  Constitutional  Act 
of  1791,  473;  difficulties  under  it, 
474;  fourth  period,  478-482;  act 
of  1841,  478;  adoption  of  British 
North  America  Act,  482;  general 
features  of  the  federal  system,  485- 
532;  population,  etc.,  486 ;  leading 
principles  of  the  system,  488 ;  con- 
stitution partly  unwritten,  489; 
amendments  of  the  act,  how  far 
possible,  491 ;  position  of  Canada 
in  the  Empire,  492 ;  relations  of 
dominion  and  provincial  govern- 
ments, 500-524;  powers  of  the 
parliament,  501 ;  of  the  provincial 
legislatures,  503;  education,  505; 
concurrent  powers,  507 ;  insurance, 
508;  criminal  law,  508;  temper- 
ance, 509 ;  disputes  under  the  act, 
compared  with  those  under  Consti- 
tution of  United  States,  511 ;  right 
to  interfere  in  cases  of  property 
and  civil  rights,  613;  veto  power 
of  governor  in  council,  514 ;  courts, 
519 ;  dominion  and  provincial  rev- 
enues, 524 ;  general  considerations, 
531 ;  the  government  and  the  par- 
liament, 533-576;  the  separation 
of  departments,  633,  546-548 ;  the 
governor-general,  534 ;  the  council, 
641 ;  the  premier,  545 ;  the  senate, 
549 ;  the  lower  house,  555 ;  parlia- 
mentary independence,  562 ;  elec- 
toral corruption,  563 ;  methods  of 
business  in  parliament,  564;  com- 
mittees, 565;  public  and  private 
bills,  566 ;  supply,  568 ;  motions 
and  inquix'ies,  570;  debate,  572; 
voting,  574 ;  the  civil  service,  574 ; 
the  provinces,  577-618 ;  division 
into  provinoes,  579  ;  the  lieuten- 
ant-governor, 583 ;  case  of  escheats, 
585;  the  executive  council,  586; 
the  legislature,  687 ;  reference  to 
provincial  courts,  594 ;  "  veto  "  and 
reserve"  powers,  595;  responsi- 
bility of  ministry,  595 ;  judiciary, 
597 ;  law,  600 ;  comparison  with 
judiciary  of  United  States,  603 ; 
local  government,  605-612 ;  refer- 
endum, 607;  Northwest  Territo- 
ries, 612;  Indians,  615;  conclu- 
sion, 616. 


ir-^f 


621] 


Index. 


1G5 


Candolle,  A,  de,  232. 

Carlyle,  quoted,  32. 

Carr,  Dabney,  217,  227,  237, 238, 239, 
240.  241 ;  offered  law  professor- 
8hip,  .311. 

Cartwright,  Major,  249,  283, 284,  285, 
294. 

Cartwright,  Miss  Frances  D.,  294. 

Cassell,  quoted,  522,  523. 

Central  (Jollege,  202  ff. 

Cliapin,  quoted,  vii-ix,  76. 

Chimney-viewers,  in  Connecticut, 
vii-ix,  97,  98. 

Church  lands,  in  Connecticut,  vii-ix, 
45. 

Church  rates,  in  Connecticut,  vii-ix, 
114. 

Church  Reform  Union,  46. 

Claiborne,  W.C.C,  167. 

Clergy  reserves  question,  in  Canada, 
476  479. 

Cocke,  Oen' IJohn  H.,  204, 209, 237, 241 . 

Coit,  Stanton,  67,  68,  69;  founds 
Neighborhood  Guild,  65. 

Colbert,  465. 

Commissioner,  in  Connecticut,  vii-ix, 
102,  103. 

Committee  of  One  Hundred,  in  New 
Orleans,  186. 

Commons,  proprietors',  vii-ix,  63  ff. 

Connecticut,  a  study  of  the  river 
towns  of,  by  C.  M.  Andrews,  vii- 
ix  ;  Dutch  and  English  in,  5 ;  early 
explorations  in,  9;  first  settlements 
in,  13  ff. ;  hard  winter  in,  22 ;  earli- 
estgovernmentof,  23;  new  churches 
in,  25 ;  efforts  to  check  emigration 
to,  25 ;  compared  with  Massachu- 
setts, 27;  democracy  in,  28  ff.;  land 
system  of,  32-81 ;  early  purchases, 
32;  Indian  reservations,  35;  grants 
by  the  general  court,  36 ;  pensions, 
37;  subsidized  industries,  39,  49; 
extension  of  town  boundaries,  39 ; 
grants  to  schools,  40;  patents  of 
1686,  40;  early  town  allotments, 
42  ff.,  new  towns,  75 ;  suffrage  in, 
82 ff.;  freemen,  82;  inhabitants,  89; 
householders,  89;  proprietors,  90; 
growth  of  the  official  system  in, 
920*.;  townsmen,  104;  constables, 
110;  town  meetings,  112;  rates 
and  fines,  114;  relation  of  towns  to 
colony,  118  ff.  (See  also  Hartford, 
Wethersfield,  Windsor.) 


Convecticut  Jourval,  quoted,  308. 
Constables,  in  Connecticut,  vii-ix,  23, 

93,98,  101,  110  ff". 
Constitutional  Act  of  1791,  473. 
Cooley.  Jndiie  T.  M.,   quoted,   514, 

594,  607,  008. 
Cooper,  Dr.  Thomas,  204,  205,  206, 

2(i9,  210,  308,  309. 
Coplestone,  t)r.  Edward,  246. 
Correa,  Abbe,  205,  224-226,  228,  234; 

letter  of,  quoted,  233. 
Cotton,  sermon  by,  vii-ix,  13. 
Craigi'e,  JJr.  David,  274. 
Crozat,  Anthony,  grant  to,  160. 

D 

Dade,  Judrje  Wm.  A.  C,  offered  law 
professorship  in  University  of  Vir- 
ginia, 311. 

Daggett,  Chief  Justice,  quole^fV'ii-lx,  • 
121. 

Darling,  Governor,  case  of,  537. 

Davies,  ^et).  Llewelyn,  46. 

Davitt,  Michael,  50;  quoted,  51. 

Davy,  Dr.  Martin,  247,  249,  251. 

Democracy,  incomplete  in  M.issachn- 
setts,  vii-ix,  27 ;  character  of,  in 
Connecticut,  28  ff'.,  125,  12t). 

Dicey,  A.  V.,  quoted,  489,  496,  520. 

District  attorney,  office  of,  established 
in  San  Francisco,  112. 

Dominion  of  Canada,  origin  of  name, 
485. 

Dorchester,  people  of,  settle  in  Con- 
necticut, vii-ix,  18,  21 ;  townsmen 
of,  104. 

Dorchester,  Lord,  477. 

Doutre,  quoted,  652. 

Drinkwater-Bethune,(SirJohnE.,261. 

Drury,  Rev.  B.  H.,  288. 

Drury,iJey.  Henry  J.T.,  277, 285,288. 

Dunglison,  Dr.  Kobley,  professor  in 
University  of  Virginia,  285. 291 ,  314. 

Du  Pont  de  Nemours,  correspondence 
of,  with  Gilmer,  228-230. 

Durham,  Lord,  report  of,  on  state  of 
Canada,  477,  578. 

Dutch,  early  relations  of,  with  Eng- 
lish on  the  Connecticut,  vii-ix, 
5-9 ;  purchase  land  of  the  Indians, 
33 ;  driven  out,  34. 

Dwinelle,  quoted,  84,  87,  88,  90,  92, 
96, 109. 


ill     I 


li 


166 


Index. 


[622 


E 


East  ITartford,  vii-ix,  75,  76,  80. 

East  Windsor,  vii-Lx,  75,  76,  77. 

Education,  power  over,  in  Canada, 
505. 

Edwards,  Timothy,  vii-ix,  76. 

Egleston,  M.,  quoted,  vii-ix,  40,  74, 
90. 

Ellington,  vii-ix,  75,  76,  77. 

Ellis,  iJr.  George  E.,  quoted,  vii-ix, 
82,  126. 

Emerson,  quoted,  171. 

Emmett,  ir.  John  P.,  elected  pro- 
fessor iu  University  of  Virginia, 
305,  306,  307. 

Entombment,  Francia's  picture  ct) 
26. 

Equivalent,  vii-ix,  58,  59. 

Escheat,  in  Canada,  585. 


F 


Fagee,  Pedro,  75. 
Farmington,  vii-ix,  75. 
Felch,  Judge,  quoted,  79. 
Fence-viewer,  in  Connecticut,  vii-ix, 

96,  97,  98,  101. 
Figueroa,  Jos^,  88. 
Fines,  in  Connecticut,  vii-ix,  114  ff. 
Fink,  J.  B.,  leaves  money  to  New 

Orleans,  179. 
Fleming,  254. 
Forbes,  Lord,  272,  273. 
Forbes,  E.  S.,  67. 
Freeman,  E.  A.,  quoted,  489. 
French,  sketch  of  their  dominion  in 

Canada,  464—469 ;  language,  in  the 

Canadian  parliament,  573. 
Frontenac,  469. 

G 

Galpin,  Albert,  vii-ix,  5. 

Galvez,  part  taken  by,  in  American 
Kevolution,  160. 

Geary,  John  W.,  116,  125;  on  the 
aflairs  of  San  Francisco,  117 ;  ve- 
toes salary  ordinance,  140. 

Gell,  P.  L.,  on  the  work  of  Toynbee 
Hall,  57-64. 

Gemmill,  quoted,  554. 

Gilmer,  Francis  Walker,  correspon- 
dence of,  195, 317;  birth,  216;  early 


letters,  218;  entei-s  William  and 
Mary  College,  220 ;  reads  law  with 
Wirt,  221;  his  essays,  224;  be- 
comes acquainted  witli  Correa,  224; 
in  Philadelphia,  226;  botanizing 
tour,  227 ;  practices  law  at  Win- 
chester, 227 ;  removes  to  Rich- 
mond, 231 ;  offered  law  professor- 
ship, 236;  goes  to  obtain  profes- 
sors, 241 ;  arrival  in  England,  243 
in  London,  244;  engages  lUaetter 
mann,  244;  at  Cambridge,  249 
letter  to  Peachy  Gilmer,  252;  to 
Wm.  Wirt,  from  Stratford,  254 
at  Oxford,  257 ;  in  Edinburgh, 
259 ;  negotiations  with  Key,  269- 
266;  and  Leslie,  267;  letter  to 
Chapman  Johnson,  268 ;  to  Peachy 
Gilmer,  271 ;  to  Jefferson,  274, 282, 
290;  declines  law  professorship, 
276 ;  again  in  London,  277  ;  nego- 
tiations with  Long,  277-281 ;  se- 
cures Dunglison,  285;  and  Long, 
286;  various  negotiations,  286, 
295 ;  letter  to  Carr,  292 ;  negotia- 
tions with  the  Harwoods,  297, 
299-301 ;  influence  on  foundation 
of  University  of  London,  298 ;  se- 
cures Bonnycastle,  299;  sails  for 
New  York,  302;  illness  after  ar- 
rival, 304;  at  Norfolk,  306 ;  news- 
paper criticisms  on  importation  of 
professors,  307;  delay  in  profes- 
sors' arrival,  309 ;  accepts  law  pro- 
fessorship, 312;  declining  health, 
312,  314;  death,  314;  literary 
work,  316,  316;  attainments,  316; 
John  Randolph  on,  316;  letters 
to,  from  Ticknor,  319-329. 

Gilmer,  Dr.  George,  215 ;  described, 
216;  death,  217. 

Gilmer,  Harmer,  218,  223. 

Gilmer,  James,  218. 

Gilmer,  John,  195. 

Gilmer,  Mildred,  217. 

Gilmer,  Peachy,  217,  314,  317 ;  let- 
ters to,  2-)2,  271. 

Gilmer,  Thomas  Walker,  215. 

Girod,  Nicholas,  leaves  property  to 
New  Orleans,  178. 

Glastonbury,  vii-ix,  75,  76. 

"  Good  Hone,"  the,  vii-ix,  8. 

Gray,  Mr.  Justice,  quoted,  495. 

Green,  S.  A.,  quoted,  vii-ix,  30. 

Green,  Pi^of.  T.  H.,  11,  45,  49,  52. 


623] 


Index. 


167 


H 

Hadlcy,  size  of  lots  in,  vii-ix,  43. 
Hall,  John,  explores    Connecticnt, 

vii-ix,  10,  11. 
Hampden-Sidney  College,  199. 
Harbor  Master,  office  of,  established 

in  San  Francisco,  112. 
Hare,  J.  I.  C,  quoted,  520. 
Harrison,  Dr.  Gepsner,  313. 
Hartford,  Dutch  fort  at,  vii-lx,  8,  9, 

17;   English  settlers  at,   20,   25; 

lands  of,  34,  42,  50,  51,  62,  64,  66, 

66,  57,  58,  t)0,  61,  62,  64,  74,  75; 

town  offshoots  of,  75 ;  laws  against 

strangers  in,   84,  87,  88;  earlier 

growth  of  official  system  in,  97. 

(See  also  Connecticut,  Constables, 

etc.) 
Harvey,  George,  287,  295,  299. 
Harwood,  Dr.  John,  '_'88,  295,  297 ; 

Gilmer's  negotiations  with,  299- 

301. 
Harwood,  Dr.  William,  Gilmer's  ne- 
gotiations with,  299-301. 
Hawurd,  in  Connecticut,vii-ix,  96, 98. 
Hawes,  Horace,  116,   126;  address 

of,  quoted,  120;   objections  of,  to 

revenue  ordinance,  123;  demands 

information  on  town  lot  question, 

128 ;  suspended  from  office,  130. 
Hay,  George,  232. 
Hearn,  W.  E.,  quoted,  496,  535. 
Henderson,  Stephen,  leaves  property 

to  poor  of  New  Orleans,  178. 
Hennen's  Digest,  quoted,  179. 
Henry,  Mr.  Justice,  quoted,  510. 
History,  Toynbee's  interest  in,  6  ff. 
Hittell,  quoted,  79. 
Hodgson,  Adam,  286. 
Holmes,  OnpUnn,  expedition  of,  to 

Windsor,  vil-ix,  9,  10;  purchases 

land  of  Indians,  32,  34. 
Holmes,  Judge,  227. 
Hooker,  Thomas,  vii-ix,  12, 13 ;  leads 

emigration    to    Connecticut,    25 ; 

quoted,  26,  92. 
Hooker's  suit,  vii-ix,  91. 
Horner,  Leonard.  273,  274 ;  and  the 

University  of  London,  298. 
Howe,  Wm.  W.,  on  the  municipal 

history  of  New  Orleans,  155-187. 
Hughes,  Thomas,  46. 
Hume,  Joseph,  and  the  Universitv 

of  London,  298. 


Iberville,  founds  Biloxi,  159. 

Indians,  on  the  Connecticut,  appeal 
to  Plymouth  to  found  a  settle- 
ment, vii-ix,  7 ;  to  Boston,  ib.,  7 ; 
their  sales  of  land  to  the  settlers, 
ib.,  32  ff'. ;  reservations  for,  ib.,  35 ; 
policy  of  Canadian  government 
toward,  615. 

Industries,  subsidized  in  Connecticut, 
vii-ix,  39,  49. 

Inspector,  in  Connecticut,  vii-ix,  101. 

Insurance,  power  over,  in  Canada, 
508. 

Ivory,  James,  245,  283. 


Jameson,  Prof.  Robert,  276,  277,  278. 

Jefferson,  Thomas,  influence  of,  on 
his  countrymen,  200;  plan  forVir-  ' 
ginia  education,  202;  connection 
with  Central  College,  202 ;  origin 
of  University  of  Virginia,  207 ;  its 
location,  208 ;  establishment,  209 ; 
early  negotiations  for  professors, 
209  fF.;  corresponds  with  Gilmer, 
228 ;  quoted,  232,  242,  248,  305, 
306;  asks  Gilmer  to  be  commis- 
sioner to  England,  236,  237 ;  on 
the  law  professorship,  238-240; 
anxiety  over  arrival  of  professors, 
309,  310 ;  prescribes  text-books  in 
government,  310;  the  law  profes- 
sorship again,  311,  312.  (See  also 
Gilmer.) 

Jeffrey,  272,  273. 

Jesuits,  in  Canada,  472 ;  controversy 
over  their  estates,  518-520. 

Johnson,  Chapman,  209,  237 ;  letter 
to,  268. 

Johnson,  Edward,  quoted,  vii-ix,  12. 

Johnson,  George,  quoted,  594. 

Johnson,  Dr.  Samuel,  302. 

Johnston,  Prof.  A.,  his  view  of  in- 
corporation, vii-ix,  78,  94 ;  on  ori- 
gin of  townsmen,  105;  his  theory 
of  town  sovereignty  criticised, 
120  ff: 

Judd,  quoted,  vii-ix,  43. 

Justices  of  the  peace,  supersede  ayun- 
tamiento  in  California,  91 ;  in  Con- 
necticut, vii-ix,  103. 


168 


Index. 


[624 


K 

Kiiye,  Dr.  J.,  251. 

Kee\Vntin,  diHtrict  of,  012. 

Kennedy,  alters  Wirt's  letter?,  216. 

Kent,  Chancelbr,  306, 

Kewen,  E.  J.  C,  letter  of,  quoted, 
129. 

Key,  T.  H.,  259 ;  Gilmer's  negotia- 
tions with,  2")9-2f)6;  secured,  282; 
arrives,  311;  returns,  313;  siibse- 
(juent  career,  313. 

Kin'^'s  College,  attempt  to  secure 
Knglish  i)rofe89or8  for,  302. 

Knox,  Dr.,  professor  in  Central  Col- 
lege, 204. 

Knox,  Dr.  Robert,  278,  286. 


Lammas  fields,  vii-ix,  69,  70. 

Land  system,  in  the  river  towns  of 
Connecticut,  vii-ix,  H2-81. 

La  Salle,  159. 

Laussat,  167. 

Laveleye,  E.  de,  quoted,  vii-ix,  72. 

Law,  John,  160. 

Lawyers,  in  Connecticut,  vii-ix,  103. 

Lete'llier,  iM.,  case  of,  636,  584. 

Legare,  Hugh  S.,  228. 

Leslie,  Frof.  John,  2«9,  275,  286, 
292 ;  letter  from,  267. 

Levermore,  Dr.  C.  H.,  quoted,  vii-ix, 
86,  100,  105. 

Lister,  in  Connecticut,  vii-ix,  101.  ^ 

Lomax,  J.  T.,  made  professor  in  Uni- 
versity of  Virginia,  312. 

London,'  University  of,  Gilmer's  in- 
fluence on  foundation  of,  298. 

Long,  George,  291 ;  offered  professor- 
ship in  University  of  Virginia, 
27.  ;  negotiations  with,  277-281; 
accepts,  286 ;  arrival,  306 ;  returns 
to  London,  313. 

"  Lord's  Waste,"  vii-ix,  18,  19. 

Louis  XIV,  decides  to  take  the  gov- 
ernment of  Canada  into  his  own 
hands,  465. 

Louisiana,  discovery  of,  159;  first 
settlement  in,  159;  granted  to 
Crozat,  160;  to  the  Mississippi 
Company,  160;  ceded  to  Spain, 
161;  government  of,  under  French, 
162;  under  Spanish,  164;  ceded 


to    United  States,    167;    elective 
franchise  in,  182;   boundaries  of, 
228. 
Loyalists,  effect  of  their  arrival  on 
Canada,  472. 

M 

Macdonald,  Sir  John,  499,  543,  604 ;  ' 
quoted,  501,  509,  544. 

Mackintosh,  292,  29.3,  294. 

Madison.  James,  202,  204,  209,  213, 
214;  quoted,  201;  makes  out  list 
of  theological  books  for  University 
of  Virginia,  301 ;  chooses  text- 
books in  government,  310,  311. 

Maine,  Sir  Ilenry,  vii-ix,  30;  quoted, 
533,  547,  551. 

Manciiester,  vii-ix,  75,  76. 

Manitoba,  province  of,  formed,  577  ; 
given  a  constitution,  582.  (See 
Canada.) 

Marlborough,  vii-ix,  75,  "3 

Marshall,  John,  197,  520,  5il.   " 

Martin,  F.  X.,  quoted,  159,  166,  167. 

Mary,  .Joseph  C,  leaves  money  to 
New  Orleans,  178. 

Mason,  Oove)-nor  R.  B.,  quoted,  101, 
103,  104. 

Massachusetts  Bay,  and  early  expe- 
ditions to  Connecticut,  vii-ix,  7, 
11;  opposes  emigration  to  Con- 
necticut, 13,  25,  26 ;  General  Court 
of,  forms  provisional  government 
for  Connecticut,  23;  democracy  in, 
incomplete,  27,85;  perambulation 
in,  100. 

Mather,  Samuel,  vii-ix,  76. 

Maurer,  G.  L.  von,  vii-ix,  30. 

McClurg,  Dr.,  221. 

McCosh,  Dr.  James,  quoted,  68. 

McCulloch,  J.  R,  263 

McDonogh,  John,  donation  of,  to  Bal- 
timore and  New  Orleans,  179-181. 

Meadow,  common,  vii-ix,  68  fT. 

Merrimac,  visited  by  men  from  New- 
town, vii-ix,  12. 

Messuage,  vii-ix,  70. 

Micheltorena,  Oovemor,  93,  95. 

Middletown,  vii-ix,  79. 

Mill,  J.  S.,  quoted,  612. 

Milne,  Alexander,  leaves  property 
to  New  Orleans,  177. 

Missions,  in  California,  designed  to 
be  temporary,  79. 


625] 


Index, 


169 


Miwissippi,  jetties  at  mouth  of,  161. 

Minaissippi  Company,  160. 

Mix,  manuscripts  of,  quoted,  vii-ix, 
17. 

Morras,  quoted,  78,  92. 

Monroe,  James,  202,  208;  recom- 
mends professors,  803. 

Montague,  F.  C,  on  Arnold  Toynbee, 
1-63. 

Montgomery^  Oommodore,  occupies 
San  Francisco,  95. 

Moraga,  Jos^,  76,  78. 

Morell,  Chptam  Benjamin,  quoted,  87. 

Morse,  John  T.,  Jr.,  201. 

Moses,  B.,  on  the  establishment  of 
municipal  government  in  SanFran- 
cisco,  71-153. 

Murray,  John  A.,  247. 

N 

Neighborhood  Guild,  C.  B.  Stover 
on,  65-70. 

New  Brunswick,  condition  of,  in 
1837,  578 ;  given  responsible  gov- 
ernment, 579.    (See  Canada.) 

Newfoundland,  remains  out  of  feder- 
ation, 482. 

New  Haven,  vii-ix,  86, 100. 

Newington,  vii-ix,  75,  76. 

New  Orleans,  W.  W.  Howe  on  the 
municipal  history  of,  155-187; 
founded,  160;  made  seat  of  gov- 
ernment, 161;  government  of, 
under  French,  162;  passes  to 
Spain,  163;  resistance  of  inhabi- 
tants, 163;  new  form  of  govern- 
ment, 164;  sources  of  revenue, 
165;  in  the  American  Revolu- 
tion, 166;  new  government  insti- 
tuted by  Laussat,  167 ;  purchased 
by  United    States,  167;    charter 

<  of  1805,  167;  its  provisions,  168; 
charter  of  1836,  169;  of  1852, 
170;  of  1856,  170;  under  mili- 
tary rule,  170 ;  Administration  sys- 

■  tem  introduced,  171 ;  its  merits, 
172 ;  abolished  by  present  charter, 
173;  its  provisions,  173;  Fire  De- 
partment, 174;  levees,  drainage, 
and  paving,  175;  water  supply, 
176;  gas  supply,  177;  charitable 
donations  in  tae  hands  of  the  city, 
177 ;  history  of  elective  franchise 


in,  182 ;  restraint  on  taxing  power, 
183 ;  control  of  citizens  over  police, 
184;  Auxiliary  Sanitary  Associa- 
tion, 185;  Committee  of  One  Hun- 
dred, 186;  Young  Men's  Demo- 
cratic Association,  187. 

Newtown,  inhabitants  of,  remove  to 
Connecticut,  vii-ix,  12,  13,  20,  21, 
25. 

New  York  Atneriean,  quoted,  309. 

Norton,  Frederick,  297,  300. 

Nova  Scotia,  condition  of,  in  1837, 
678;  given  constitutional  govern- 
ment, 579.    (See  Canada.) 


Ogilvie,  James,  218-220;  quoted,  206; 

Oldham,  John,  in  Massachusetts,  vii' 
ix,  10 ;  first  journey  of,  to  Connecti- 
cut, 10 ;  evidence  as  to  settlement 
of,  atWethersfield  in  1634, 14-17; 
land  of,  how  held,  32. 

Ontario.    (See  Canada.) 

O'Reilly,  Alexander,  163, 164, 165. 


Palou,  Father,  quoted,  76. 

Parkman,  F.,  quoted,  465. 

Parr,  Dr.  Samuel,  244,  266,  257, 272, 
275,277,283,292;  letter  of,  quoted, 
295. 

Parton,  James,  201. 

Pauger,  proposes  jetties  at  mouth  of 
Mississippi,  161. 

Peachy,  A.  C,  opinion  of,  on  owner- 
ship of  lands  in  San  Francisco,  1 27. 

Pensions,  in  Connecticut,  vii-ix,  37. 

Pequots,  attack  Indians  on  the  Con- 
necticut, vii-ix^  6. 

Perambulation,  vii-ix,  98-100. 

Percival,  J.  G.,  303. 

Philaddphia  OazetU,  quoted,  308. 

Pictet,  233. 

Pinder,  in  Connecticut,  vii-ix,  96,  98. 

Plymouth,  Indians  appeal  to,  to  found 
settlement  on  the  Connecticut,  vii- 
ix,  7 ;  sends  commission  to  Boston; 
7 ;  builds  fort  at  Windsor,  8, 9 ;  dis- 
pute of,  with  Dorchester,  18 ;  per- 
ambulation in,  100. 

Pope,  William,  222,  302. 


170 


Index, 


[626 


Poydras,  Julien,  166. 

Praed,W.M.,  259,271. 

Prntz,  Le  Pnge  du,  quoted,  161. 

Prefects,  duties  of,  in  California,  120. 

Presidio,  character  of,  78. 

Previous  question,  in  Canada,  671, 
572. 

Prince  Edward  Island,  absentee  land- 
lords in,  578;  given  responsible 
government,  579.     (See  Canada.) 

Privy  council,  appeals  to,  from  Can- 
ada, 497,  622,  524. 

Pueblo,  organization  of,  80. 

Q 

Quakers,  excluded  from  Connecticut, 

vii-ix,  84,  85,  86. 
Quebec.    (See  Canada.) 
Quebec  act,  471. 

R 

Randall,  H.  S.,  quoted,  208. 
Bandolph,  John,  197,  226,  254;  his 

relations  with  Gilmer,  305;    his 

opinion  of  Gilmer,  317. 
Bandolph,  Thomas  M.,  222. 
Bates,  in  Connecticut,  vii-ix,  114  ff. 
Becorder,  in  Connecticut,  vii-ix,  101. 
Begidores,  in  California,  82,  83,  85; 

in  Louisiana,  164. 
Bice,  Dr.,  J.  H.,  199,  211. 
Eichmond  Enquirer,  quoted,  307. 
Biley,  Oen'l  Bennett,  proclamation 

of,  114. 
Biver  towns  of  Connecticut,  C.  M. 

Andrews  on,  vii-ix. 
Bocky  Hill,  vii-ix,  75,  76. 
Bush,  Bichard,  242,  244,  295. 
Buskin,  John,  effect  of,  on  Toynbee, 

14 ;  his  descriptions,  27. 

s. 

Saltonstall,  Sir  Bichard,  sends  out 
Stiles  party,  vii-ix,  19. 

Sanchez,  Francisco,  quoted,  90. 

San  Francisco,  establishment  of  mu- 
nicipal government  in.  Prof.  Moses 
on,  71-153 ;  discovery  of,  75 ;  first 
settlement  at,  76;  appearance  of, 
in  1792,  77 ;  government  of,  before 


1834, 87 ;  erected  into  a  pueblo,  88 ; 
new  ayuntamiento,  90;  effect  of 
Constitution  of  1836,  91 ;  syndic 
and  alcaldes  in,  92,  93,  96,  97,  98, 
99;  passes  to  United  StateH,  95; 
new  government  in,  101 ;  effect  of 
discovery  of  gold  on,  105 ;  confusion 
of  government  of,  106;  new  gov- 
ernment in,  107;  general  code 
of  laws  in,  113;  courts  in,  113: 
new  government  declared  illegal 
and  old  re-established,  114,  116; 
improvements  recommended  by 
Geary,  117;  revenue  ordinance, 
122;  the  cause  of  confusion,  124; 
trouble  over  land  grants,  126 ;  city 
charter,  130;  its  provisions,  132; 
officers,  136 ;  scheme  of  council  for 
plundering  treasury,  137;  public 
protests,  138;  ordinance  vetoed, 
140 ;  further  organization,  141 ; 
effect  of  California's  admission  as 
a  State,  147 ;  character  of  city  ad- 
ministration, 148;  new  charter, 
149 ;  end  of  old  council,  163. 

Sav,  J.  B.,  205. 

Schools,  land  granted  to,  in  Connec- 
ticut, vii-iz,  40;  support  of,  116. 

Seeley,  J.  B.,  quoted,  616. 

Seigniorial  system,  abolished  in  Can- 
ada, 479. 

Shore,  John,  244.  • 

Sickles,  S.  v.,  leaves  money  to  New 
Orleans,  179. 

Simsbury,  vii-ix,  76,  76,  79. 

Sloat,  Qmmodore  John  D.,  «ioeiipie8 
Monterey,  94. 

Smith,  Goldwin,  quoted,  562. 

Smith,  Sir  James  Edward,  250,  251. 

Smith,  John,  Gilmer  copies  MS.  re- 
lating to,  294. 

Smith,  Han.  Balph  D.,  quoted,  vii-ix, 
65. 

Smith,  Toulmin,  quoted,  vii-ix,  84, 99. 

Southampton,  vii-ix.  123. 

South  Windsor,  vii-ix,  75,  76,  77. 

Spain,  provisions  of  constitution  of 
1812  as  to  local  government,  82  ff. 

Stewart,  Dugald,  283 ;  letter  of,  quo- 
ted, 289. 

Stiles,  Francis,  leads  party  to  Wind- 
sor, vii-ix,  19. 

Stiles,  Dr.  H.  B.,  quoted,  vii-ix,  21, 
32,  33,  36,  37,  69,  77,  88, 101,  103, 
111,  114. 


TT 


627] 


Index. 


171 


Stover,  C.  B..  on  the  Neighborhood 
Guild  in  New  York,  65-70. 

Strong,  Mr.  Justice,  quoted,  580. 

Strong,  Dr.  Josiah,  quoted,  68. 

Suffrage,  in  Connecticut,  vii-iz,  30, 
82  ff. 

Sulpitians,  472. 

Superior  Council,  governs  New  Or- 
leans, 162. 

Surveyors,  in  Connecticut,  vii-ix,  96, 
98,  101, 

Swift,  M.  I.,  67,  68. 

Syndic,  in  California,  82,  83,  85,  92, 
93;  in  Louisiana,  164,  165. 

T. 

Talcott,  Miu  Mary  K.,  vii-ix,  5. 
Tax-collectors,  in  Connecticut,  vii-ix, 

93,  96,  101. 

Taylor,  John,  of  Caroline,  letter  of, 
quoted,  200. 

Taylor,  Robert,  209. 

Tazewell,  L.  W.,  197,  221. 

Teigniuouth,  Lord,  244. 

Terrell,  Dabney  C,  232. 

Thorp,  W.B^ftl, 

Tii^nor,  George,  212,  226,  228,  246; 
letters  of,  to  Gilmer,  319-329. 

Tocqueville,  A.  de,  quoted,  548. 

Todd,  A.,  quoted,  496,  497,  499,  607, 
638,  598. 

Torrey,  John,  303,  305. 

Touro,  Judah,  leaves  money  to  New 
Orleans,  178. 

Town,  the  historic,  vii-ix,  30. 

Town  meetings,  in  Connecticut,  vii- 
ix,  112, 113. 

Townsmen,  in  Connecticut,  vii-ix,  93, 

94,  95,  96,  98, 101, 104  ff.;  become 
selectmen,  109. 

Toynbee,  Arnold,  F.  C.  Montague 
on,  1-53;  early  years,  6;  enters 
Balliol  College,  II ;  personal  ap- 
pearance, 11 ;  conversational  pow- 
ers, 12 ;  acquaintance  with  Buskin, 
14 ;  studies  political  economy,  15 ; 
religious  opinions,  15 ;  takes  lodg- 
ings in  Whitechapel,  24;  inter- 
vtds  of  rest,  26 ;  his  common  sense, 
28 ;  appointed  tutor  at  Balliol,  30 ; 
marries,  32 ;  his  ideas  of  economic 
methods,  33 ;  studies  the  industrial 
revoluUon,  33;  his  views  on  com- 


petition, 34;  forms  an  economic 
club,  35;  gives  popular  lectures, 
37,  61 ;  his  views  on  co-operation, 
41 ;  on  church  and  state,  43 ;  work 
among  the  poor,  49;  travels,  60; 
l<Mt  da^s,  52 ;  letter  of.  auoted,  56- 
67;  his  ideas  of  social  responsi- 
bility, 67. 

Toynbee,  Joseph,  6. 

Toynbee  Hall,  P.  L.  Gel!  on  the  work 
of,  57-64.  (See  also  Neighbor- 
hood Guild.) 

Toynbee  Trust,  58. 

Tracy,  Destutt,  205. 

Trent,  Wm.  P.,  on  English  culture 
in  Virginia,  189-329. 

Trumbull,  Dr.  B.,  quoted,  vii-ix,  22. 

Tucker,  George,  elected  professor  in 
University  of  Virginia,  306,  307. 

Tucker,  H.  St.  George,  227,  228,  241, 
311. 

Turf  and  twig,  possession  by,  vii-ix, 
41. 

Tuttle,  Bev.,  quoted,  vii-ix,  21. 

Tweddel,  John,  271. 

u 

Ulloa,  Antonio  de,  163. 
Unzaga,  165. 
Upshur,  Abel  P.,  222. 

V 

Vancouver,  quoted,  77. 

Vaughan,  Benjamin,  232. 

Virginia,  English  culture  in,  W.  P. 
Trent  on,  189-329 ;  slate  of  culture 
in,  at  beginning  of  century,  197; 
financial  ruin  of,  223 ;  Gilmer  on, 
256;  perambulation  in,  vii-ix,  100. 

Virginia, University  of,  248, 264, 266 ; 
origin  of,  207;  located,  208;  es- 
tablished, 209;  first  salaries  in, 
303;  opens,  311.  (See  Gilmer, 
Jefferson.) 

w. 

Walker,  Francis,  215. 
Walker,  John,  254. 
Wampum,  in  Connecticut,  vii-ix,  34, 
36. 


172 


Indea, 


[628 


Warham,  tll-lx,  92;  date  of  coming 
of,  to  Connecticut,  2 1 ,  26. 

'Warner,  public,  in  C!onnecticnt,  vli- 
lx,96,99.  

Washington  College,  199. 

Watertown,  early  exodus  flrom,  to 
Connecticut,  vii-ix,  18;  connection 
of  Oldham  with,  14;  later  immi- 
gration from,  21 ;  slae  of  -lots  in. 


Way-wardens,  in  Connecticut,  vii-ix, 

Webster  w.  Harwington,  cited,  vii- 
ix,  121. 

Western  Company,  160.       ■ 

West  Hartford,  vii-ix,  78,  76. 

Wethersfleld,  diagram  of  early  allot- 
ments in,  vii-ix,  4;  earlie*t  settle- 
ment at,  18  ff. ;  lands  of,  84, 42, 43, 
44,  45,  46,  47, 48, 49,  61, 62,  63,  64, 
56  67,  60,  61,  63, 64,  66, 66, 67,  73, 
74;  town  oflhhoots  of,  76;  r'^cers 
chosen  in,  102.  (See  also  Connec- 
ticut, Constables,  etc.) 

Wickham,  197. 

William  and  Mary  College,  19f  211, 
248. 


Wmiard  w.  KilUngworth,  cited,  vl!- 

ix,  121. 
Wilson,  John.  289. 
Wilson,  Woodrow,  quoted,  647. 
Windsor,  settlements  at,  vil-lx,  9, 17 
ff;  claim  of,  to  priority  of  settle- 
ment, 17 ;  disputes  over  possession 
of,  1^;  lands  of,  84,  42,  48,  60,  61, 
62, 66,  68,  69,  62,  67,  68 ;  town  off- 
shoots of,  76,  76,  77;  regulates  ad- 
mission  of  inhabitants,  87,  88.  (Bee 
also  Connecticut,  Constables,  etc.) 
Windsor  Locks,  vli-ix,  75-76. 
Winslow,  Edward,  vii-ix,  7, 18. 
Winthrop,  John,  vii-ix,  19,  89,  49, 

126;  quoted,  16,  22. 
Wirt,  William,  1^7,  217,  221,  23 
230,  231,  314;  quoted,  216,  220; 
letter  to,  264;  offered  law  profea- 
sorshlp,  312. 
Wordsworth,  Dr.  Christopher,  261. 


Young  Men's  Der  ocratlc  AssodA* 
tion,  in  ^e»v  Oi'       b,  187. 


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